BEWARE ! Identify the criminal in your corporation – by Adv. Kanish Malhotra


It is a common misconception that businesses are incapable of wrongdoing because of their inability to think for themselves or form intentions. The only people who can break the law at a firm are the people who work there (Sullivan 1995).
However, once it is accepted that corporate personhood is a fiction – albeit a well- established and very valuable one – there appears to be no reason why the law should not evolve a parallel corporate men’s rea fiction. This is because corporate personhood is a fiction that allows corporations to act as if they have the same rights and responsibilities as natural people. It is frequently asserted in opposition to corporate criminal liability that the enforcement of penalties does not ensure that delinquent activity will be avoided. However, this is not the case. The penalties thatare handed down to businesses are usually inconsequential when weighed against the devastating effects of the wrongdoings they have committed, and they are seen as an inevitable expense of running a company. However, there is a concern that excessive fines might have unintended repercussions that would be borne by innocent shareholders, creditors, workers, or consumers. These individuals could be held liable for the costs of the fines. However, it is essential to keep in mind that the overall wealth of enterprises is decreased when they are subjected to punishment. As a consequence of this, both the shareholders and the workers have a vested interest in promoting and supervising the implementation of better business procedures. It is only possible for costs to be passed on to the general public if the firm can maintain its competitive edge. The bulk of the other concepts, such as identification and aggregation, amongst others, are founded on fictitious imputations of responsibility.

The most important question is not whether or not the idea of corporate mens rea is a fiction; rather, it is whether or not it is the fiction that, of all the fictions, most closely reflects the reality and perceptions of modern-day corporations. The vast majority of individuals are not complicit in the illegal activities of corporations. These illegal behaviors include members of society who hold certain roles; as a consequence, they can only take place under certain conditions. Traditional crime theories typically have a tautological element to them, which means that they describe criminal behaviour in terms of the same things that they hypothesize as being the causes of criminal behaviour. If acts of crime are understood to be those carried out by young, impoverished guys with low IQs, then explanations that place a strong focus on factors such as age, poverty, and cognitive capacity are not particularly useful in this context. On average, corporate offenders are older, richer, and have a higher level of rated IQ than the general population. This portrayal of corporate criminals brings up important issues that cannot be solved through circular thinking.

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