Kamis, 18 April 2013

Business law Advisor-justification of criminal penalties for violations of Corporate Governance


1. Corporate governance concerns the separation of ownership and control results when a company is publicly traded and therefore has too many owners who cannot control all companies at a time, and as such, they hire professional Managers to do so. Was defined, as follows:
“The system through which those involved in the management of the company are held accountable for their performance, with the objective of ensuring that they adhere to the objectives fixed in the company”.

It is generally accepted that the law plays a key role in corporate governance particularly in the provision of shareholder protection and reduction of expropriation that is the result of the separation of ownership and control. However, the importance of the role of criminal law in enforcing good corporate governance there are more than one view. Effectiveness of criminal sanctions in deterring violations of corporate governance.

2. in order to discourage unwanted behavior, criminal law has traditionally used such penalties of imprisonment, fines and the stigma of criminality. While it’s been debated in general the effectiveness of such sanctions in the criminal law, it has been persuasively argued that they may actually deter corporate crime. Because the companies are primarily useful for institutions choosing to break the law, only if it is profitable. Profit maximization decisions closely rely on probability and the amount of potential profit, then a company decision to violate the criminal law would generally include a calculation of the probability of prosecution and probable severity of any punishment. These costs high enough should eliminate the potential benefit of illegal business and, therefore, any incentive to engage in such activity.

Improper business conduct 2.1 might be deterred by applying criminal sanctions for the same company or its agents and employees. A company cannot, obviously, be imprisoned, but there may be the stigma of criminal label attached to it. This stigma could affect company behaviour if led to decreased profits.

2.2. a system of fines imposed on companies even properly should discourage corporate wrongdoing as fines are large enough to force the companies to disgorge any advantage gained by the infringing conduct.

2.3 you can deter misbehavior company by applying criminal sanctions to individuals in your organization. Since entrepreneurs fear the stigma of criminality for personal and economic reasons, such sanctions could be effective deterrents. In fact, the fear of criminal prosecution or investigation, even if there is no conviction, may actually discourage company officials.

Corporate 2.4 civil penalties and civil penalties also individual will be inadequate When an individual is motivated to break the law by reasons other than simply business. He may ask, for example, to improve his position within the company or even to use his position to violate a law that he believes is unfair. Therefore, any additional deterrent that’s needed to complete a system of civil fines could only be achieved by imposing penalties on such reprehensible behavior by individuals.

criminal law also authorizes 2.5 other law-abiding individuals-if the Board of Directors, managers and other professionals-to stand up to well-meaning colleagues or not, at a minimum, to resist with guilt.

2.6 survival and long-term viability of the company is no longer a private interest that only affects those who deal with the corporation at a primary level, for example, investors, but also public interest affecting the wellbeing of stakeholders such as employees, which provides jobs and pensions. The Government, therefore, has a responsibility to ensure that employees, as well as other members of society are protected from fraudulent acts of the managers who are not acting in the interests of the company. The success of the company is, therefore, a public interest which, to a certain extent, should be protected through State regulation.

2.7 Research confirmed that penal sanctions are the only mechanism able to protect investors from wide-scale fraud or theft. Every country uses harsh penalties to deal with Enron and Parmalat.

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