INTRODUCTION
The corporates have come a long way from
being accused of creating public nuisances or being a culprit under the law of
torts. They can today easily be seen creating a grave dent in the working of
any society. They have become the necessary evils today. The society cannot
survive without them and at the same time it is becoming difficult to survive
with them. The difficulty lies not only in the fact that it is way too
difficult to put the blame on the companies for a criminal wrong committed by
them rather the most challenging part is to put the blame on the right shoulders
when a wrong has been done. Who carried the plan out, who drafted the plan to
why the plan was drafted? What profits would be achieved are the few questions
which keep the investigators of the corporate crimes busy.
Even though a separate legal presence and
existence of the company has long been established by the courts yet, the
complex hierarchy of todays’ mainstream body corporate make it a tiresome
process to find out the real culprit who acted on behalf of that legal
personification. The employees, the directors, the agents, the other
stakeholders, all of them can be held liable guilty on behalf of the criminal
acts of the company.
Money laundering, privacy frauds, nuclear
disasters, human trafficking, environmental disasters, corruption, bribery,
violence etc. are the few of the crimes which have been associated with the
modern day multi-national giants. Their new characters have forced the courts
to give newer interpretations about the concept of criminal liability of the
corporates and also has led to new legislations being adopted where by the
governments have incorporated new jurisprudence of handling the corporate crime
and corporate guilt.
1.1.Meaning
The Australian criminologist John
Braithwaite defined corporate crime as “the conduct of a corporation or
employees acting on behalf of a corporation, which is proscribed and punishable
by law.[1]
This definition stands the test of time as these crimes can be categorised into
two sub sects. In the first subsect the employees or the company commits the
wrong and in the second subsect the company faces the wrong against itself.
Both these categories lead to corporate
crimes. In many cases the face of the
criminal is separate from the company but over the past decades it is visible
that the corporate veil has hidden quite a few faces behind it and saved them
from being punished. Corporate conduct has been regulated by the corporate laws
since long. It's time that the liability of a company for criminal wrongs be
addressed. The common laws make a corporation liable for the actions of its
agents when employees/ agents act within the scope of their employment and
create a profit for the corporation with that act.
NATURE OF CORPORATE CRIMES
Corporate crimes are considered to be
general varieties of the White Collar Crime. Corporate crimes are also known
with reference to occupational crimes. The distinction between corporate crime
and occupational crime is that whereas corporate crime refers to situations in
which corporate managers commit a criminal act for the benefit of the
corporation, the occupational crimes are committed by individual employees
against the corporation itself or the customers or consumers of the corporation,
in the course of employment. When we deal with ‘corporate crime’ the first
question that emerges is whether the corporate actually commit crime. This
question can be answered by looking at the situations in which substantial harm
is caused in the operation of the corporations which is much more than the
traditional crimes committed by individuals.
Looking the matter from criminological
perspective, the criminal behavior in corporate crimes it is altogether
different from the traditional crimes committed by the individuals. The
criminological theories have developed in different settings by placing the
behavior of the individual as an individual in focus and not in the
organizational structure. Still these are the acts and activities of
individuals in the corporate crimes which are attributed to the corporation.
As such there is no separate branch of
criminology dealing with corporates. The criminal behavior of corporations is
tried to be understood by applying the existing theories applicable to
individual delinquency. However, there is a need to analyse the corporate
crinie and criminal behavior in the new settings in which corporations operate.
Another significant aspect of corporate
crime is that while the response of the criminal justice to the individual
crime is prompt and aggressive it is lacking or mild to the corporate crime. At
the same time oblivious societal response also tends to minimize the
seriousness of the corporate crime.[2]
Therefore corporate crime has acquired a new meaning which is required to be
understood and addressed, if we are to control and combat this emerging form of
criminality.
2.1 Features of Corporate crimes
There are wide range of corporate crimes
which otherwise contain certain typical features. The corporate crimes are generally
committed within anonymous structure of action and communication and within a
frame work of generally legal activity[3].
There are, therefore, not easy to detect and are characterized by their low
visibility
1) White Collar Crimes and Corporate
Crimes
Edwin Sutherland introduced the terms
'White Collar Crime' 'Mainly Sutherland brought into focus the arena of
criminal acts which are committed by the people in upper class of the society
in contrast to the belief the criminal acts are only committed by persons
belonging to lower strata of society. Since white collar crimes are linked to
professional and elite class the corporate crime have a link to white collar
crime. The corporate crime deals with a company as a distinct entity. It benefits
the corporation as a whole which may include investors and individuals in the
high position in the company. White collar crime and corporate crimes are
similar as both are involved with business. The difference is that white collar
crime benefit individual and corporate crime benefit the corporation.
When we discuss white collar crime in
relation to corporate crime we can find that term 'White Collar Crime' is wider
and it can include 'Corporate Crime.' It is asserted by Sutherland that
corporate crime is a large scale version of white collar crime, because it
involves people of high class society, committed in the course of their
occupation.[4]
The two forms of crime overlap each other because they all happen within
similar environments in which incentives are high for an individual or group to
engage in bribery, money laundering, inside trading, forgery and embezzlement
etc. Presently corporations focus on prevention of white collar crimes through
their policies and procedure. In view of the detrimental effect of corporate
crimes as financial, reputational etc., there is need for specific policies and
procedures for prevention and detection of corporate crimes[5]
2) Corporate Crimes and Occupational
Crimes
Individuals or small groups in connection
with their jobs commit occupational crime. Examples are embezzlement, theft,
tax evasion, manipulation of sales, fraud etc. by employees for their own
benefit. Corporate crimes are committed by collectivities or aggregate of
discreet individual on behalf of the corporations. As such individuals or
groups commit occupational or elite crimes for their own purpose or enrichment,
rather than for enrichment of the organisation on a whole[6].
Corporate crime is rather committed at the higher level of corporation for
example at the Managerial level or other responsible position and the
occupational crimes could involve employees at all levels.
In corporate crime both organisations and
individuals may be illegal actors and could be liable for their criminality.
Occupational crimes can be labeled as crime against the organization. As such
corporations become victims of crime when they suffer a loss as a result of an
offence committed by any one including employees and managers. On the other
hand corporations become perpetrators of crime when managers or employees
commit financial crime within the context of legal organization.[7]
In the criminological context the
occupational crime are linked to individualistic approach to attribute the
criminality. The corporate crime may be attributed to system failure. Marshall
Clinard and Richard Quinney have suggested that the term ‘White Collar Crime’
be replaced by two constituent terms – ‘Corporate Crime’ and ‘Occupational
Crime’. The first category is meant to include offences committed by
corporations and their officials for the benefit of the corporation. The second
kind of crime is defined as that which is committed ‘in the course of activity
in a legitimate occupation’ and is meant to apply to offences involving persons
at all levels of the social structure.
3) State Corporate Crimes
State corporate crime is a concept which
refers to crime which are committed in relationship with policies of the State
and the policies and practices of commercial corporations[8].
State corporate crime is distinguished from corporate crime which refers to
deviance within the context of corporation and by the corporation. It is also
different from political crime which is directed at State. It is also not
'State Organized Crime' which is crime committed by Government Organisations.
The infrastructure of law and commerce is
provided by government of each State in which the corporations desire to trade,
and there is inevitable linkage between the political and commercial interests.
All States rely on business to provide an economic base consistent with each
government's political policies. Without supportive policies economic activity,
businesses will not be profitable and will not be able to provide the economic
support that the State desires. In some cases the symbiosis may lead to crime.
There acts include all 'socially injurious acts' and not merely those that are
defined by the local jurisdiction as crime. Harper and Israel commencted that
'societies create crime because they construct the rules whose transgression
constitutes crime. The State is a major player in this process.[9]
Snider said that capitalistic States are often reluctant to pass laws to
regulate large corporations, because this might threaten profitability and
these States offer use considerable sums to attract regional or national inward
investment from large corporations.[10]
They may give preferential tax concession, loans and subsidies etc.
In the circumstances there would be a
difficulty to enforce local laws against pollution, health, safety, monopolies
and repayment of debt etc. This approach of the State may give room to
organized crimes, corruption and other serious offences.
4) Corporate Crimes and Organised
Crimes
The organized crime generally involve
illegal street activities such as kidnapping or cross border operations like
drugs trafficking whereas corporate crime involves 'clean jobs' like
manipulation of accounts, insider trading, misappropriation of funds, tax
evasion etc. The points of similarity can be the requirement of some degree of
financial, social or political influence for successful operation. Both types
of crime are thriving for money. It is viewed that corporation are better
organized, are wealthier and get benefit from economy of scale in corruption.
Corporations are better placed to manipulate politicians and media. By making
use of large grants, generous campaign contributions and influential lobbying
organisations, they may push law changes and legal reforms that benefit their
illegal activities. These offences are carried out with planning and
discreetly. Further both corporate crime and organized crime can have global
impact and thereby pose difficulty in detection and prosecution. There can be
money connection between corporate crime and organized crime. The perpetrator
of organized crime needs to clean the money that they got through illegal
activities.[11]
They may set up legitimate business activity through corporations for the
purpose of money laundering. Therefore, corporate crime may relate with
organized crime. The prevalence of these crimes is due to availability of
opportunity to commit crime and absence of deterrence. Organised crime like
corporate crime affect the society at large, that is, no specific individuals
are singled out as victims. The points of difference are that organizational
structure of corporations is formal where as in organized crime those are
informal hierarchies in which members, usually family members, occupy ranks that
determine their duties. The group in organized crime functions in secretive
manner whereas corporation activities are legitimate and publically known
businesses. Whatever illegal activity is carried on the corporate crime it is
in the guise of legitimate acts of the corporations. Speaking generally,
corporations may commit business crimes whereas illegal organization are in the
business of committing crime.[12]
Some of the factors that
are responsible for commission of white collar crimes are:
(a) Socio-Economic
Developments:
Increase in economic crime could also be
attributed to socioeconomic developments. There is increase in mobility and
communication. The more business opportunities have arisen because of
development in communication and internet technology. It is observed that due
to these developments problems of economic crimes are cumulating. High benefits
can be achieved with little efforts. There is low risk of detection as compared
to benefit in the realm of internet.
(b) Organisational
Structure:
If the internal structure and setting of
an organization is such that raise the probability commission of crime for the
purpose of attainment of its goals. This will put the organization to risk of
violating societal norms and laws dealing with organizational behaviour. The
persons may thrive to act for the organization to attain its goals, to prosper
or at least to survive.
(c) Criminologic
Market:
Sometimes persons in the organization need
to commit crime because of criminologic market forces. When corruption is a
rule rather than exception there is need to pay bribes to enter into or stay in
the market. It is said that market force is also a reason for criminal
behaviour.[13]
TYPES OF CORPORATE CRIME
In the present era when the corporations
are impacting every sphere of life by taking of various activities the range of
corporate crime, vary from physical harm to gross economic damage. Generally, a
wrongful act of a wrongdoer is understood to affect the mind body, reputation
or property in one way or the other. At the present junctions we cannot say the
corporates are not capable of doing any of these wrongs. Rather the impact and
gravity could be far more than committed by an individual in the individual
capacity. As has been discussed in the foregoing discussion such crime
committed by the corporations are more discreet and the victims though not
directly in focus suffer gravely through corporate crimes. It is correctly said
that the corporate crimes are taken less seriously because they are mala
prohibita (wrong because they are prohibited by the Government) rather than
mala se (intrinsically wrong). Therefore, there is a difficulty to place their
in proper place. In a pursuit to study types of corporate crime it is found
that there is no specific classification of such offences, however the
researcher has tried to categorise them for the purpose of understanding
characteristic of different wrongful corporate activities which could be dealt
under criminal law. Broadly we can say
that there are corporate criminal activities which (1) involve employees; and
(2) between the corporations; and (3) against the society In the first there are offences which are
understood as occupational crime committed by the employees at different level.
Such crimes are committed against the corporation itself and many include
embezzlement, kick backs, breach of confidentiality etc. The crime between the corporations can be
like dumping, price fixing and bid rigging etc. Crime against the society can
be those which affect health or life, hazardous activities, financial frauds,
investment frauds, theft, racketeering, Security frauds, tax evasion, stock
market manipulation, inside trading, etc. In addition to general category of
offences the corporations are criminally liable for breach of regulatory
offences. In view of the above researcher makes an endeavour to discuss some of
the corporate crimes as these have emerged at the national and international
levels. The discussion as such is not exhaustive but could be useful to understand
the nature of criminality in different crimes committed in corporate
situations.
CRIMES RESULTING IN PHYSICAL HARM
(a) Industrial
Disasters
With the growing importance of the
companies in our lives, there has been an increase in the risk and destruction
caused by these companies too. This destruction can take place at any stage;
production, processing storage, disposal etc. A random slip of operations in
handling the chemicals or the radioactive material or any other form of energy
can lead to a great damage to the surrounding atmosphere. More than 3000 people
died and over 5,00,000 people were exposed to Methyl Isocyanate gas (MIC) on
the night of December 2, 1984 when water entered into a wrong compartment due
to a missing pipe, which resulted in an injury that would affect the
generations to come. One single mishap accused at Union Carbide cooperation,
Bhopal left a detrimental impact on the surroundings. Half a million people had
to be evacuated from the village in Jaipur in 2009 when an oil tank carrying
8000 kiloliters of oil caught fire. It look the officials more than a week to
put the blaze out. Huge losses of life and property have been faced in such
incidents worldwide. Explosives were randomly stored on the port of China
(Tianjin) which blasted and more than 700 people died in the month of August
2015. The impact of Ukraine's Chornobyl Power Plant explosion in 1986 was felt
by Soviet Union and Europe and the harm It caused is still being seen in 2005
in form of cancer and other diseases on the people.
(b) Ignoring
occupational standard and safety standards
Many fatalities and injuries occur every
year when the standard safety and occupational standards are ignored by the
corporates. Death of employees due to accidents, mechanical errors, electric
shock etc. cause damage of human life and leaves an impact on their families
too. When the safety standards are ignored by the corporations then existing
conditions which otherwise may be harmless may cause potential harm to health,
property or environment. European Union through its European Agency for Safety
and Health at work, in their report in 2009 reported that biohazards, radiation
etc. result in substantial loss of life.
©
Victims of unsafe products
These can be a defect in the product of
the companies because of the design, manufacturing or handling of the product
while storage/ marketing. These defects have a direct effect on the
Consumers who have not foreseen an
immediate danger while buying their products. England and Wales office for
National Statistics (London) in its report published in 2002 reported that
approximately 2.9 million people get injured due to accidents at home. The
accidents were related to handling of unsafe products due to design or
manufacture. In 1978, the American automobile giant Ford had to claim back its
Pinto Cars as there was a defect in their fuel system. The explosions caused
death of more than 180 people. Engineering and Mechanical defects are more
dangerous to handle. Product safety may be deliberately compromised by
companies to save money and cut product cost.
(d)Victims
of industrial pollution
The Riro Mine in Jharkhand has lead to
serious health issues being faced by the HO community because of the 0.7
million tons of asbestos being dumped in the water. The land there is also
getting affect because asbestos has covered the cultivated land as well. Even
decades later the water of Bhopal is still contaminated as benzene has seeped
into the land resulting in contaminated underground water. The immediate impact
of the disaster may get over within few days but long enduring imprints are
visible for years to come. Nuclear disaster and other mishappenings have
resulted in an outbreak of diseases like cancer, thyroid, malnutrition etc. all
over the world.
(
e ) Human Right Violations
The guiding principle of Business on
Business and Human Rights in 2011 has undertaken that the role and duty to take
care of human rights violation under the obligations of corporate legal
liability, Rome statute and corporate criminal responsibility. But ironically
the global world is witnessing a different scenario. Gross misconduct is done
towards the labourers and employees in shape of forced labour, child labour
inhuman working conditions, denial of proper sanitation, no medical facilities
etc. In 2013, a South Korean company was told to pay 88,000 dollars each to the
victims, whose human rights were violated by them during 1910-1945[14].
The companies have multinational presence and to this they are freeling involved
in offences like human trafficking, physical abuse, torture etc. to get the
maximum work out of the employees for profit.
ECONOMIC CORPORATE CRIMES
(a) Deceptive
Accounting
Corporations are to work within the
regulatory framework. Corporations are required to prepare financial reports
containing information about the financial health of the company. Such reports
are retied by the investors, creditors or other stakeholders. In the event when
there is falsification of audits to mislead or play deception it may result in
huge loss. Such incidents have happened like in case of Enron in USA and Satyam
in India. Enron was working in Energy Sector in United States in 2000’s with
revenues exceeding $100 billion.
In India the Satyam Scandal in 2009 was
biggest corporate scam. Ramalinga Raju, the Chairman of the Satyam confessed
that company’s accounts had been falsified. Raju inflated the company revenue,
profit and profit margin for every single quarter over a period of five years
from 20032008. It was a scam of Rs. 72 thousand crores. Mr. Raju was declared
guilty with two other accused. This led to collapse of Satyam Group a leading
IT sector company.
The Satyam Case led to inclusion of ‘early
warning system’ though various provisions of the new Companies Act 2013. The
Security Exchange Board of India (SEBI) got more supervisory powers and
auditing standards were recreated. SEBI made it mandatory for promotions of
tested companies to disclose the quantum of shares pledged/mortgaged with
lenders to raise funds. The new Companies Act, 2013 lays more emphasis on ‘self
regulation’ then Government regulations’. The Act now defines the role and
responsibilities of company management, independent directors, and promoters and
also provides code of conduct. The concept of rotational auditors has also been
introduced in the new Act.
(b) Insider
Trading
Every day, a lot of significant and
confidential information is exchanged between the officials of a corporation
but when this information is used to create profit for one’s over self by the
employee is called the insider trading. The misuse of the bonus price, the
price curtailing, stock information can manipulate the balance of money in an
outsiders favour. The information can be passed by the employee or by the
connected person like a banker, auditor etc. Life savings of the individual can
be lost within minutes because of the insider trading. In Dharmesh Doshi
scamequity worth 25,000 crore exchanged hands. In 2009, the Galleon group of
industries had to close down when their owner Raj Rapratnam was arrested by FBI
for insider trading. The implications are not just on the employees but also on
the shareholders and stakeholders of the companies who face huge financial
losses because of such acts.
(c)
Manipulation of Security Market
The companies gain huge profits when they
manipulate the market through a security, may be through the currency or by
manipulating a commodity. These activities are created to generate the interest
of an investor but due to this the state and individual can both face losses.
The wrong and misleading information is posted, spread or published related to
a stock to either increase or decrease stock price of a share of company. Huge
ripple effects can be faced by the stock exchange within minutes of
manipulation and it can lead to crash of markets too.
(d) Stealing Trade Secrets
Every company has its own strategy of
working. These may be the business plans, the manufacturing details, business
method details, marketing strategies, future destinations, stock details etc.
The company thrives on these trade secrets and its goes equally for the private
or the public firms. Hacking into these trade secrets is a common threat and
modus operandi for many corporations. Many methods are adopted by them to
achieve this. A cyberattack may be initiated or an insider employee may be
bribed, or a set up may be instigated to manipulate the documentation. Theft of
trade secrets not only effects the shareholders of the victim company but also
the community. It leads to intellectual property theft, corruption, illicit
financial flow, occupational frauds, narcotics trafficking, black marketing. In
America, in January 2016, Dupont was asked by the Supreme Court of Delware to
pay 1.7 million dollars for a license agreement procured otherwise. Companies
like Cocacola, KFC, etc. pay huge amounts to secure over the past competitive
decades has become a prominent organized crime.
(e) Investment Trend
Harshad Mehta, Ketan Parker, R. Ramalinga
Raju are few names that the security market of India can never forget. They
have been the reason for embezzling hundreds of crores through investment
frauds in the last 30 years. Loopholes in the investment securities are misused
to Funnel out the money into their own Bank accounts. Fictitious and Bogus
firms are created their bogus transactions are made, which only exist on paper
but their dividends and profits are procured in cash by these masterminds. In
February 2014 Supreme Court of India ordered the arrest of Subrata Roy, the
founder of Sahara Group for failure to return over 20,000 crore plus interest @
15% to millions of its small investors. Jignesh Shah, founder of MCX was
arrested for his alleged involvement in Rs. 5600 crore National Spot Exchange
Limited (NSEL) scam. He failed to hand out 13,000 crore back to his
investments. Investment scams lead to frauds, money laundering, bankrupting and
even loss of lives due to financial losses and rivalries.
(f) Corporate Bribery
This is a type of crime, where many a
times state also becomes a party. Huge monetary benefits exchange hands between
private/public individuals to grab hold of a deal. Multinational corporations
pay the governments to secure their business. The developing countries and the
under developed countries are the biggest playgrounds for the companies to play
with the rules of corporate bribery. There operates a huge nexus between the
government and the companies where bribery is concerned. Nixon’s Resignation in
1973 for the Watergate scandal brought the issue in spotlight and after that
many corporations and public individuals have been tried for this offence. The
state revenue loss, loss of opportunity, illicit flow of money, unemployment
are just a few after repercussions of corporate bribery along with loss of
trade and reputation.
(g) Corporate Manslaughter
Corporate manslaughter is an offence where
homicide of individuals result due to gross negligence on the part of the
corporate. In these cases the duty to take is totally misappropriated by the
corporations. It’s a crime under English Law where by the companies can be
prosecuted for non-implementation of standard safety rules along with
precautionary steps required to be taken for employee safety. In 1993 Peter
Lyme of OLC limited was jailed for three years and fined 60,000 pounds for an
incident where Four teenagers died in a canoeing incident. Big amusement parks,
rail disasters, boat mishappenings, disasters and loss of lives at the activity
camps etc. are few examples where due to a mechanical glitches or an
engineering fault many times have been lost.
Offences under the Companies Act
Within the garb of legal provisions, the
companies are a capable of committing many crimes. Tax evasion, auditing
frauds, share rate fluctuation, dishonouring of cheques, default bank accounts.
Benami property transactions etc. are clearly visible in the functioning of the
corporations. The Indian Companies Act. 2013 makes it the liability of the
Directors, the accountants, auditors to stop such frauds. These acts result in
monetary loss, loss of reputation and revenue for the company along with loss
of faith from the investors. Acts like mis-statement in prospectus, liability
to pay for qualification shares, refund of share application money, fraud in
contracts, fraudulent conduct of business, unlimited liability under the
memorandum, income tax frauds, labour law violations, frauds on minority
shareholders are such incidents which can have the shareholders and the
stockholders devastated.
CONCLUSION
Corporate crime is referred as the conduct
of a corporation or employees acting on behalf of a corporation which is
prescribed or punishable in law. Thus corporate crimes are committed for
corporate gain or to bring harm to any other person or body corporate. Such
crimes are committed in a quite environment. These are also considered to be
general varieties of white collar crimes. However the criminal behavior in
corporate crimes to different from the traditional crimes committed by
individuals. Corporate crimes are socially injurious or blameworthy acts which
cause financial, physical or environmental harm or harm caused to the workers
and the general public.
It is believed that corporate criminal
behavior is also a result of learning process from with the working of the
corporations. This behavior is also attributed to major social and moral
change. In a pursuit to meet targets or goals there could be adoption of
unlawful means. Further there is neutralization theory where in the given
circumstances conduct is tried to be justified. Lack of adequate control could
also promote criminal behavior.
In addition there are factors like cost
benefit considerations, socio-economic developments, organizational structure
and crimologic market which are attributed to corporate criminal behavior. In
the corporate control there is criminality of the corporation itself and also
the liability of the responsible persons which can be vicariously fixed. Law in
this repeat needs to be more clearly defined.
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