Korporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels
Abstract
The different models for the criminal liability of juristic persons reveal a tension
between individualist and realistic approaches. For individualists a corporation is the
product of a union of individuals. This means that a juristic person can only be held
criminally responsible if the conduct and fault of an individual involved in the entity
are attributed to the juristic person. For realists a corporate entity has an existence
independent of its individual members. The juristic person is blameworthy because
its corporate identity or corporate ethos encouraged the criminal conduct. A study of
organisational theory reveals that corporate crime may not necessarily be traced to
the fault of specific individuals. Corporate criminality often is the result of complex
decisions on different levels of the corporate hierarchy and furthermore is
encouraged by the manner in which the organisation is structured. Prominent
scholars such as the American philosopher Peter A French and the Australian Brent
Fisse rejected an individualist approach and attempted to develop models of
corporate fault based on the corporate identity idea. The failure of a corporation to
take preventative or corrective measures in reaction to corporate criminal conduct is
regarded as the basis for corporate fault by these authors. French calls this the
"principle of responsive adjustment" whilst Fisse names it the concept of "reactive
fault." A more sophisticated model (the "corporate ethos" model), which is also more
reconcilable with the basic notions of criminal law, was developed by the American
legal scholar Pamela Bucy. A corporation will be held criminally responsible if its corporate ethos has
encouraged the criminal conduct. The corporate ethos can be established with
reference to numerous factors such as the corporate hierarchy, corporate goals, the
existing monitoring and compliance systems and the question whether employees
are rewarded or indemnified for inappropriate behavior.