公司法人人格否认理论与股东有限责任

一般认为,公司法人人格否认理论是股东有限责任的例外适用和有益补充。本文认为,公司法人人格否认理论是对股东有限责任的根本否定,而股东有限责任作为有限公司制度的基础和支柱,其价值远远高于公司法人人格否认理论。公司人格的滥用问题应通过强化董事责任的方式在合同法和侵权法领域加以解决。     

Does Control Make a Difference? The Moral Foundations of Shareholder Liability for Corporate Wrongs

The doctrine of limited liability, as traditionally understood, prevents shareholders from being held personally liable for corporate wrongs. Several authors have recently argued that the doctrine should be modified to make some or all shareholders individually liable for torts committed by corporations in which they hold shares. This article distinguishes three types of argument that might provide a moral basis for shareholder liability in such cases. I contend that while these arguments support holding at least some shareholders liable for corporate torts, they fail to justify a general regime of unlimited pro rata shareholder liability. The level of control shareholders exercise over a company makes an important difference to their moral duties to compensate victims of corporate wrongdoing.     

公司法人格否认中控制股东责任性质之探讨

在公司法人格否认情形下,控制股东的责任性质影响到其责任的承担.运用民法的原理,通过对公司法人格否认情形下控制股东责任性质的分析,认为控制股东的责任是一种侵权的民事责任,控制股东应当对自己行为的后果承担全部的赔偿责任,而不是承担一次性的补充责任.对此种责任与涉及公司股东的其他责任进行了比较研究.     

International Economic Criminal Law

This inquiry explores the question of transnational companies’ criminal liability for international crimes, reviewing the current state of research in the field of international economic criminal law, a discipline that hitherto has received only scant analysis. Following some preliminary conceptual remarks (I.), the forms of corporate participation in such crimes (II.) and the supranational and national practice since Nuremberg are presented. This practice reveals a clear trend towards corporate liability, albeit represented by leading company staff. For this reason, and because legal persons (companies) ultimately act through natural persons (their staff), their liability (IV.) cannot be convincingly established on a purely collective basis – in the sense of a pure organisation model (IV. 4.1.) – but only on the basis of the attribution model, namely as a derivative corporate liability based upon supervisory or organisational culpability (IV.4.2.). The attribution model’s individual approach – or, to use procedural terms, the individualistic “trigger” for the prosecution of companies – finally brings us to the well-known forms of criminal participation (V.), with liability for complicity in particular coming into question. All in all, the essay concludes (VI.), we should not expect too much of (international) criminal corporate liability. Here, as in many other areas, criminal law can only have a (limited) preventive effect as part of a holistic approach.     

Corporations as Moral Agents: Trade-Offs in Criminal Liability and Human Rights for Corporations

This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.     

From Manslaughter to Preventable Accident: Shaping Corporate Criminal Liability

This article looks at the assumptions, agendas, and relations of power that shaped Bill C-45, revisions to the Criminal Code of Canada aimed at strengthening corporate criminal liability. The Bill, passed in fall 2003, originated in response to the deaths of twenty-six workers at the Westray mine in 1993, a disaster caused by unsafe and illegal working conditions. Through an examination of Parliamentary Committee hearings, this article explores how conceptions of corporate criminal liability were shaped and modified, and links this to the implications and potential of Bill C-45 to hold corporations to account. The authors argue that conservative conceptualizations of corporate liability limited the reform options that were considered by the Committee, and that the resulting legislation will do little to challenge the structural conditions that underlie culpable workplace injury and death.     

Food Fraud and the Partnership for a ‘Healthier’ America: A Case Study in State-Corporate Crime

At a moment of heightened public concern over food-related health issues, major corporations in the food industry have found their products and practices under scrutiny. Needing to be understood as socially responsible, these corporations have established partnerships with the state to construct a positive, proactive, and cooperative public image. One major public–private partnership that evolved from former First Lady Michelle Obama’s Let’s Move initiative—the Partnership for a Healthier America—serves as a case study in this paper, which analyzes the consequences and social harms perpetuated by a public health campaign bound by the imperative to maximize profit. By using trusted state actors to deliver accurate but deceptive claims about food companies’ commitment to public health, this public–private partnership actively misleads the public and potentially exacerbates public health challenges, warranting a skeptical revision of how we understand corporate social responsibility and neoliberal governance on issues of health and nutrition. As a form of fraud, these attempts to mislead the public go beyond the actions of public sector individuals or members of corporate boards, but are structurally incentivized by the legal rights, regulatory privileges, and profit-related incentives central to the modern corporate form. While conventional criminological research tends to underemphasize state and corporate harms, we make use of a critical criminological perspective to analyze state-corporate partnerships in the space between food industry practices and public health policy.     

Going to the dogs?

Corporate trustees administer assets worth billions and directorsof these trusts expect to carry on their work without fear ofpersonal liability to beneficiaries other than in exceptionalcases whose ambit is limited and well understood. The emergence in recent years of an action known as the ‘dog-leg’claim threatens this certainty. The claim is brought by beneficiariesfor breach of trust generally, directly against the trustees,where none of the usual grounds for personal liability is evenalleged. The claim relies on being able to prove that the corporate trustee'srights against directors for breach of director's duties areheld by the trustee not for its own benefit, but for the benefitof the trust. This article explains how the claims are put togetherand why, fortunately, in practice they will rarely (if ever)succeed. The recent case of Alhamrani v Alhamrani has stimulatedthis appraisal.     

有限责任的缺陷及法人人格否认制度之构想

股东有限责任与公司人格独立是法人制度的价值所在,然而有限责任在促进经济发展、吸收股东投资的同时也有无法回避的致命的弱点。从有限责任固有的缺陷着手,结合我国公司人格滥用之现实和国外法人人格否认制度的法理分析,应能找出构建我国公司法人人格否认制度的一些方法。     

The Merowe Dam Project – When Does the Coin Flip from Legal Business Activity to Criminal Behavior? Reflections on the Concept of Guarantor’s Liablity in the Context of Transnational Business Activities

The individual liability of corporate officers for crimes that are often framed as transnational human rights abuses is much debated. While it seems that some standards of liability are developing in the field of international criminal law, standards of criminal liability in cases where the alleged crimes do not amount to international crimes remain to some extent unclear. This article will examine a concrete case that was investigated by the Frankfurt/Main prosecutor’s office. Additionally, it will be considered whether international soft law standards on corporate human rights due diligence have an influence on how the existing standards of guarantor’s liability, and especially that of principals (Geschäftsherrenhaftung), are to be interpreted in these cases.     

行业协会限制竞争行为的责任制度研究

我国《反垄断法》第46条对行业协会限制竞争行为的责任规定十分粗疏,重构责任体系实属必要。我国行业协会限制竞争行为的责任制度不应仅仅限于行政责任,而且还应当包括民事责任、刑事责任和自律责任。此外,责任追究应当根据行业协会、成员企业以及理事会在组织和实施限制竞争行为中所扮演的角色而应有所区别对待,同时执法机关有权根据行业协会及其成员企业配合检查的态度和情形而宽严相济。     

Identifying Successor Corporations Liable under CERCLA and Pursuing Insurance Coverage for That Liability

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes liability well beyond general corporate successor rules. A company can allocate liability to other Potentially Responsible Parties as more culpable, taking advantage of CERCLA's joint and several liability. Often a source of recovery must be teased from a complex corporate history somehow connected to the site. This article examines the basis for attributing environmental liability to entities within a corporate history, before addressing how even a bankrupt or dissolved target may still have insurance that can be tapped. Similarly, CERCLA's strict liability enables recovery from insurance with some connection to either the target's or the company's corporate history, notwithstanding insurers' non-assignment arguments.     

Litigating Corporate Human Rights Information

This article analyzes trends in litigation brought against corporate actors regarding human rights information. Such information includes, but is not limited to, statements on packaging claiming that products are “ethically sourced” and investor-facing disclosures representing that an issuer's operations are environmentally friendly. It proceeds by outlining the sources of human rights-related disclosures as they arise under both legal and voluntary regimes. The article then addresses the case law. Recent years have seen an increase in lawsuits involving human rights information, or lack thereof, imparted by companies. Consumer protection or consumer fraud cases are being filed, alleging that companies have either provided false and misleading information or omitted information about corporate human rights impacts and mitigation efforts. Investors are filing similar claims. The article examines the trend and considers the role of this litigation both in holding companies to their word and in providing corporate accountability for the underlying human rights abuses that false or misleading human rights information may mask. It ultimately argues that, although success at trial in such cases remains elusive, litigation is a useful and potentially growing tool for holding companies to their word regarding human rights claims. It contextualizes this litigation, arguing that other means by which companies can be held to their word should be strengthened, including public enforcement and—potentially—new disclosure and due diligence laws.     

Environmentalism and the internet: corporate greenwashers and environmental groups

Environmental degradation is a serious problem, for current populations and for future generations. Corporations are the largest offenders but seldom face the consequences of their actions. This article proposes that public relations campaigns and conflicting information on the internet pose significant challenges to calling for environmental accountability from corporations. Three companies – Coca‐Cola, Georgia Pacific, and Shell – are examined here in terms of questionable practices and public relations campaigns. While the internet could be an alternative news source, ‘corporate greenwash’ muffles a definitive voice on environmental issues. Both retributive and restorative justice processes are thwarted by misleading information. Despite environmental laws and efforts to increase accountability, calling for necessary change will continue to be exceedingly difficult without public knowledge of corporate behavior.     

Liability for sexual harassment in criminal justice agencies

This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.     

Limited Liability in California 1928-31: It's the Lawyers

Only in 1931 was the California Corporate Code revised to providefor limited liability. In earlier work I found that this movehad no detectable effect on shareholder wealth. In this articleI examine the potential beneficiaries of this change with aneye toward finding out who wanted this change. Using this historicalexample we can shed light on a number of issues including: (1)the economic impact of limited liability; (2) the role of lawyers,especially lawyers of high prestige, in determining the law;and (3) the competition or lack thereof among states in designingtheir corporate codes.     

建立我国公司法人人格否认制度的法理透视与思考

在我国 ,市场经济确立不久 ,公司立法制度也起步较晚 ,我国正式立法中几乎没有形成公司法人人格否认的理念。但是随着我国现代市场经济的快速发展 ,我国经济生活中已经出现了一些带有普遍意义上的公司法人人格和有限责任的滥用 ,损害公司债权人以及社会公众利益的情况。因此 ,通过对外国公司法人人格否认制度的理性分析与研究以及对我国现在有些公司成员滥用公司法人人格侵害公司债权人和社会公众利益的实证考察 ,提出如何确立我国的公司法人人格否认制度来完善我国的公司法律制度。     

Globalization of criminal justice in the corporate context

Globalization, the rising of an economy outside the paradigm of government by nation-states, has created new opportunities for transnational corporate crime, defined broadly here as avoidable harms inflicted across national borders for purposes of economic gain. The authors reexamine theories of corporate criminal liability in the transnational context and applaud the recent French codification of corporate criminal liability in terms broad enough to encompass the new economic realities. Finally, they examine the inability of current adjudicative fora to effectively assert jurisdiction over transnational corporations and suggest that the harms associated with toxic waste spills, unethical marketing practices, and other corporate misconduct are more ubiquitous and dangerous than the harms of terrorism and war crimes that have captured the attention of the emerging global civil society.     

试论在华跨国公司环境侵权的责任承担机制

跨国公司在华子公司因拥有法人地位,其法律责任的承担通常是依据《公司法》的规定,承担有限责任,但也不排除在特殊情形下适用公司法人格否认。由印度博帕尔案可以看出。在跨国公司子公司从事高污染、高环境风险生产经营行为的情形下,依照有限责任制度则可能给无过错的环境侵权债权人带来极大的不公正,有限责任制度的缺陷与困境尤其凸显。因此,在跨国公司环境责任的追究机制中,合理采纳法人人格否认责任制度是十分必要的,此外,美国在某些环境侵权的特定情形中将母公司纳入责任承担主体的范围,追究跨国公司“整体”责任的做法也值得借鉴。     

Firm Risk Management in the Face of Product Liability Rules*

This paper addresses the issue of corporate risk management strategies in dealing with products liability law. It views risk management as the dependent variable. How do attributes of the firm and of the law of products liability influence the risk management practices of the corporation? Drawing on the work of Oliver Williamson and others, the paper views the firm as a boundedly rational organization that must devote significant resources in monitoring and controlling its agents. This is especially costly in an environment where the measure of adequate performance (i.e. the design, manufacturing and marketing of a non-defective product) is uncertain and where the criteria used by legal actors (judges and juries) to judge product defectiveness, may vary substantially from the criteria used by the firm's engineers and scientists. Both the costs of control and the level of legal uncertainty are variables. Together they combine to shape a firm's risk management strategy.