法学（法律）相关参考资料（教案）：法人刑法以及组织动机.pdf_大学文库

1 Introduction In the United States, but generally not in Europe, firms are criminally liable for crimes committed by their employees within the scope of the firm and to its benefit. The nature of corporate crime comprises essentially fraud (usually against the government ), environmental violations, and antitrust violations Cohen, 1996) Corporate criminal liability puts a serious challenge to the economics of enforcement. Are corporate crimes different from other crimes? Are these crimes best deterred by punishing individuals, punishing corporations, or both? What is optimal structure of sanctions? Should corporate liability be criminal or civil? This paper has two major contributions to the literature. First, it pro- ides a common analytical framework to most results presented and largely discussed in the field. In second place, by making use of the framework we provide new insights into how corporations should be punished for the offenses committed by their employees Evidence suggests that wrongdoing by corporations is largely an agency cost. It appears to be the case that the managers do not commit corporate crimes to serve the interests of the shareholders( Alexander and Cohen, 1996 and 1999 ). Thus, the usual economic model of crime needed to be extended to a principal and agent framework in order to explain corporate crime Even though the economic analysis of crime is now over 30 years old Becker's(1968)analysis of optimal punishment has only recently been ap- plied to corporate crime. While most of the literature surveyed in Polinsky and Shavell(2000) has been concerned with optimal sanctioning of rational individuals, recent theoretical analysis has focused on employee-manager re- lationship. Given the existence of different interests, one aims at designing the appropriate incentives to deter offenses. Under an optimal design, it is useful to discuss if it is desirable to hold an employee liable for corporate crimes(Polinsky and Shavell, 1993; Shavell, 1997), or what the structure of optimal corporate sanctions should be(Arlen, 1994) In Becker's model, an offense is committed by a rational individual who decides whether or not to commit the crime based on the probability and severity of punishment. However, in the context of corporations or organi

1 Introduction In the United States, but generally not in Europe, firms are criminally liable for crimes committed by their employees within the scope of the firm and to its benefit. The nature of corporate crime comprises essentially fraud (usually against the government), environmental violations, and antitrust violations (Cohen, 1996). Corporate criminal liability puts a serious challenge to the economics of enforcement. Are corporate crimes different from other crimes? Are these crimes best deterred by punishing individuals, punishing corporations, or both? What is optimal structure of sanctions? Should corporate liability be criminal or civil? This paper has two major contributions to the literature. First, it provides a common analytical framework to most results presented and largely discussed in the field. In second place, by making use of the framework, we provide new insights into how corporations should be punished for the offenses committed by their employees. Evidence suggests that wrongdoing by corporations is largely an agency cost. It appears to be the case that the managers do not commit corporate crimes to serve the interests of the shareholders (Alexander and Cohen, 1996 and 1999). Thus, the usual economic model of crime needed to be extended to a principal and agent framework in order to explain corporate crime. Even though the economic analysis of crime is now over 30 years old, Becker’s (1968) analysis of optimal punishment has only recently been applied to corporate crime. While most of the literature surveyed in Polinsky and Shavell (2000) has been concerned with optimal sanctioning of rational individuals, recent theoretical analysis has focused on employee-manager relationship. Given the existence of different interests, one aims at designing the appropriate incentives to deter offenses. Under an optimal design, it is useful to discuss if it is desirable to hold an employee liable for corporate crimes (Polinsky and Shavell, 1993; Shavell, 1997), or what the structure of optimal corporate sanctions should be (Arlen, 1994). In Becker’s model, an offense is committed by a rational individual who decides whether or not to commit the crime based on the probability and severity of punishment. However, in the context of corporations or organi- 2

zations, the crime results from different possible actors committing or pre- venting offenses. Thus, the results presented in Polinsky and Shavell(2000) must be reinterpreted in the context of corporate crime Corporate crime is not committed by firms, as such, but by different in- dividuals within the corporation, who are eventually criminally liable. A socially optimal criminal sanctioning policy would favor large corporate fines over criminal liability(and jail sentences) for these individuals involved in the criminal activity(Cohen, 1996). This claim, based on Becker's analy assumes that corporate directors and shareholders who could be subject te large fines will provide the correct amount of employee monitoring, and even- tually er post sanctions on their employees to ensure that socially harmful offenses are not committed. In a perfect world, with complete contracting and without liquidity constraints, individual liability alone would induce efficient behavior. Consequently, corporate liability would not be necessary(Arlen 1999). Conversely, corporate liability is worthwhile investigating when con- tracts are incomplete or when solvency matters Imposing non-monetary sanctions(e.g, imprisonment sentences) is a par- tial solution to the problem of agents insufficient wealth. Imprisonment how ever is expensive and usually courts are not willing to impose them(Arlen nd Kraakman, 1997). Thus, corporate liability is the other possible solution Corporate liability can take the form of strict liability imposed whenever a crime takes place; duty-based liability imposed only the firm itself violates a legal duty; or a composite regime in which the firm is liable but the magnitude of the sanction depends on whether the firm complied with its duties(Arlen 1999). Vicarious liability is the strict liability of a principal or the firm for the misconduct of an agent or an employee. Most corporate liability for torts and in the United States for crimes as well, is vicarious(Kraakman, 1999) Within a context of corporate liability, shareholders become quasi-enforcers Since corporations are held strictly liable for their employees'actions, the government delegates on the corporation the task of monitoring and control- ling potential offenders(Baysinger, 1991). It lowers the cost of enforcement to the government, but it increases the monitoring costs to firms. Moreover, the government must make sure the firm has the appropriate incentives to monitor and penalize its employees The principal-agent setup is the usual framework to study this problem 3

zations, the crime results from different possible actors committing or preventing offenses. Thus, the results presented in Polinsky and Shavell (2000) must be reinterpreted in the context of corporate crime. Corporate crime is not committed by firms, as such, but by different individuals within the corporation, who are eventually criminally liable. A socially optimal criminal sanctioning policy would favor large corporate fines over criminal liability (and jail sentences) for these individuals involved in the criminal activity (Cohen, 1996). This claim, based on Becker’s analysis, assumes that corporate directors and shareholders who could be subject to large fines will provide the correct amount of employee monitoring, and eventually ex post sanctions on their employees to ensure that socially harmful offenses are not committed. In a perfect world, with complete contracting and without liquidity constraints, individual liability alone would induce efficient behavior. Consequently, corporate liability would not be necessary (Arlen, 1999). Conversely, corporate liability is worthwhile investigating when contracts are incomplete or when solvency matters. Imposing non-monetary sanctions (e.g., imprisonment sentences) is a partial solution to the problem of agents’ insufficient wealth. Imprisonment however is expensive and usually courts are not willing to impose them (Arlen and Kraakman, 1997). Thus, corporate liability is the other possible solution. Corporate liability can take the form of strict liability imposed whenever a crime takes place; duty-based liability imposed only the firm itself violates a legal duty; or a composite regime in which the firm is liable but the magnitude of the sanction depends on whether the firm complied with its duties (Arlen, 1999). Vicarious liability is the strict liability of a principal or the firm for the misconduct of an agent or an employee. Most corporate liability for torts, and in the United States for crimes as well, is vicarious (Kraakman, 1999). Within a context of corporate liability, shareholders become quasi-enforcers. Since corporations are held strictly liable for their employees’ actions, the government delegates on the corporation the task of monitoring and controlling potential offenders (Baysinger, 1991). It lowers the cost of enforcement to the government, but it increases the monitoring costs to firms. Moreover, the government must make sure the firm has the appropriate incentives to monitor and penalize its employees. The principal-agent setup is the usual framework to study this problem, 3

where the government is the principal, the shareholders are the supervisors and the employees are the agents. Note in passing that most of the literature characterizes the problem as the corporation being the principal and the employees the agents. Our characterization seems more appropriate and more useful as discussed later Y One important question is which party(the government or firm)is the least-cost enforcer. It could be the case that imposing individual criminal li- bility might be less expensive than imposing high monitoring costs on firms However, the standard case for corporate liability points out that firms have better information, thus providing less expensive preventive measures. As Arlen and Kraakman(1997)characterize, a firm could be superior sanction- er because their enforcement measures are more credible and effective The second important point is how the firm might align the interests of its employees with its own. In particular, the analysis depends on whether or not the firm has the ability to provide correct incentives. Corporate and individual sanctions are substitutes in order to deter crime as long as the employee can bear the full cost of the optimal monetary fine. If the penalty is imposed on the firm, it will be passed along to its employees by lowerin salaries. When the firm is unable to shift the penalty to the employee, the penalty should be placed directly on the employee and the corporation must monitor the employee' s action to prevent the occurrence. Aligning the interests of the corporation with those of the government is also expensive(Block, 1991; Alexander and Cohen, 1999). The general result seems to be that poorly performing corporations are more likely to engage in crime(Macey, 1991). Alexander and Cohen(1996) also find that larger firms are more likely to engage in crime than smaller firms. Weak internal controls and concern with short-term financial arrangements, and less concern with long run portfolio diversification n to be positively related to cor crime(Baysinger, 1991). Consequently, performance and dimension of firm affect the government's cost in monitoring the corporation Inducing optimal monitoring and ensuring internal sanctioning (that is credibility of firm's enforcement policy) is not immune to controversy. Arlen (1994)identifies a ' potentially perverse effectby which holding firms(vicari- COhen(1996)finds that sanctions increase with harm and increased en the organization cannot afford to pass along to its employees the 4

where the government is the principal, the shareholders are the supervisors, and the employees are the agents. Note in passing that most of the literature characterizes the problem as the corporation being the principal and the employees the agents. Our characterization seems more appropriate and more useful as discussed later. One important question is which party (the government or firm) is the least-cost enforcer. It could be the case that imposing individual criminal liability might be less expensive than imposing high monitoring costs on firms. However, the standard case for corporate liability points out that firms have better information, thus providing less expensive preventive measures. As Arlen and Kraakman (1997) characterize, a firm could be ‘superior sanctioner’ because their enforcement measures are more credible and effective. The second important point is how the firm might align the interests of its employees with its own. In particular, the analysis depends on whether or not the firm has the ability to provide correct incentives. Corporate and individual sanctions are substitutes in order to deter crime as long as the employee can bear the full cost of the optimal monetary fine. If the penalty is imposed on the firm, it will be passed along to its employees by lowering salaries. When the firm is unable to shift the penalty to the employee, the penalty should be placed directly on the employee and the corporation must monitor the employee’s action to prevent the occurrence.1 Aligning the interests of the corporation with those of the government is also expensive (Block, 1991; Alexander and Cohen, 1999). The general result seems to be that poorly performing corporations are more likely to engage in crime (Macey, 1991). Alexander and Cohen (1996) also find that larger firms are more likely to engage in crime than smaller firms. Weak internal controls and concern with short-term financial arrangements, and less concern with long run portfolio diversification, seem to be positively related to corporate crime (Baysinger, 1991). Consequently, performance and dimension of the firm affect the government’s cost in monitoring the corporation. Inducing optimal monitoring and ensuring internal sanctioning (that is, credibility of firm’s enforcement policy) is not immune to controversy. Arlen (1994) identifies a ‘potentially perverse effect’ by which holding firms (vicari- 1Cohen (1996) finds that sanctions increase with harm and increased individual liability when the organization cannot afford to pass along to its employees the fine. 4

ously) liable for offenses committed by its employees can increase enforcement costs. If the information that the firm acquires can be used to increase its own probability of incurring liability, the firm will not monitor optimally. In order to tackle this effect, a composite liability regime where some duty-based lia- bility or mitigation provisions are included has been proposed(Arlen, 199 costs are high, strict liability could be preferable. po Arlen and Kraakman, 1997).However, it has been noted when information The role of risk aversion is not explicitly considered in our paper. Port folio diversification means shareholders behave as if they were risk neutral whereas managers are risk averse. Criminal liability increases the risk of projects, making managers less willing to take them. However, because share- holders are risk neutral, they should be more willing to accept projects that involve criminal offenses, ceteris paribus. These observations suggest that managers should be pushed by shareholders to take projects that involve criminal offenses. Corporation criminal liability would be justified as a de- vice to deter this type of behavior by shareholders(Macey, 1991). Clearly there is an inconsistency with empirical evidence(Romano, 1991 ): Managers do not commit corporate crimes to serve the interests of the shareholders Our paper is organized the following way: the basic model is presented in section two, while sections three (moral hazard), four(reputation loss five(internal punishment), and six(internal control) consider different ex- tensions, Final remarks are addressed in section seven 2 Basic model The underlying results of the literature come from the principal-agent model in which the firm s choice of compensation contract affects the agent's choice of care in avoiding crime. In that respect, our model draws on Alexander and Cohen(1999) and Gans(2000 2Duty-based liability is imposed only when the firm itself violates a legal duty, and not henever a crime occurs as in strict liability. 3An important extension of corporate criminal law is the potential use of secondary liability beyond the firm. In particular, liability ofgatekeepers' as a third party monitor ing the corporation could be useful. Examples include criminal liability of auditors and

ously) liable for offenses committed by its employees can increase enforcement costs. If the information that the firm acquires can be used to increase its own probability of incurring liability, the firm will not monitor optimally. In order to tackle this effect, a composite liability regime where some duty-based liability or mitigation provisions are included has been proposed (Arlen, 1994; Arlen and Kraakman, 1997).2 However, it has been noted when information costs are high, strict liability could be preferable.3 The role of risk aversion is not explicitly considered in our paper. Portfolio diversification means shareholders behave as if they were risk neutral, whereas managers are risk averse. Criminal liability increases the risk of projects, making managers less willing to take them. However, because shareholders are risk neutral, they should be more willing to accept projects that involve criminal offenses, ceteris paribus. These observations suggest that managers should be pushed by shareholders to take projects that involve criminal offenses. Corporation criminal liability would be justified as a device to deter this type of behavior by shareholders (Macey, 1991). Clearly there is an inconsistency with empirical evidence (Romano, 1991): Managers do not commit corporate crimes to serve the interests of the shareholders Our paper is organized the following way: the basic model is presented in section two, while sections three (moral hazard), four (reputation loss), five (internal punishment), and six (internal control) consider different extensions. Final remarks are addressed in section seven. 2 Basic Model The underlying results of the literature come from the principal-agent model in which the firm’s choice of compensation contract affects the agent’s choice of care in avoiding crime. In that respect, our model draws on Alexander and Cohen (1999) and Gans (2000). 2Duty-based liability is imposed only when the firm itself violates a legal duty, and not whenever a crime occurs as in strict liability. 3An important extension of corporate criminal law is the potential use of secondary liability beyond the firm. In particular, liability of ‘gatekeepers’ as a third party monitoring the corporation could be useful. Examples include criminal liability of auditors and lawyers. 5

Suppose that equity depends on two sort of activities, one being the usual productive effort (m) and the other a socially harmful behavior, e.g. violation of some environmental regulations (n). The expected value of management’s equity is given by αG(m, n), where α is the fraction of outstanding equities securities that management owns and G(.) is the expected value of firm equity. Equity is determined the following way: it is one with probability m + n and zero with probability 1 − m − n. Thus, the expected value of equity is G(m, n) = m + n. The expected private value of management’s socially harmful behavior is E(n), where En > 0 and Enn 0, Cm > 0, Cnn > 0, Cmm > 0, and Cmn > 0. While n denotes the management’s influence over the probability that corporate crime will occur, let u be an independent random influence variable with distribution function F(.). Assuming n and u have additive effects, social damage occurs if and only if n + u > 0. Thus, the probability of social damage being observed is P r(n + u > 0) = 1 − F(−n) = P(n), the probability of crime being continuously increasing in n, Pn > 0 and Pnn ≥ 0. It is assumed that the government cannot actually observe n. However, if the social bad occurs, the government can, with probability σ, detect the agent’s harmful activity and punish accordingly. Management bears, in that event, a penalty sa while the employer bears a penalty sp. The fixed component of the salary of the management is ω. The expected profits of the (risk neutral) management are: U = ω + α(m + n) + E(n) − C(n, m) − P(n)σsa (1) The expected profits of the owners of the firm are: V = (1 − α)(m + n) − ω − P(n)σsp (2) The optimal contract when the employer can observe m and n is described by maximizing the expected profits of the owners of the firm subject to the participation constraint, U ≥ k, where k is the agent’s reservation utility. Rearranging expected profits, we can write: V = m + n + E(n) − C(n, m) − P(n)σ(sa + sp) − k (3) 6

The first-order conditions of the problem are: Vm = 1 − Cm = 0 (4) Vn = 1 + En − Cn − Pnσ(sa + sp) = 0 (5) Since second-order conditions are satisfied, we derive the optimal contract hm∗ , n∗ i. The socially harmful activity is decreasing in the policy parameters hσ, sa, spi, whereas the productive effort is increasing in those same parameters (because Cmn > 0). As in the usual framework (Polinsky and Shavell, 2000), we consider social welfare to be the sum of the payoffs of the employer and of the management minus the social damage caused by the socially harmful activity. Social welfare is given by: W = m + n + E(n) − C(m, n) − P(n)H − k (6) where H is social harm. Notice that the difference between the government’s objective and the employer’s is the social damage. By setting sa + sp = H/σ, the government can make the employer’s objective identical to its own. Nevertheless this is not a first best outcome because enforcement is costly (Becker, 1968). It is not very relevant who is actually punished since management and employer can bargain ex ante and reallocate sanctions. It is equally effective to set sa = H/σ and sp = 0 or sp = H/σ and sa = 0. Furthermore, individual liability of management alone induces efficient behavior. Corporate liability is not needed or necessary unless there is a wealth constraint that limits sa. Suppose there is a binding liquidity constraint so that sa = ¯ω < H/σ. Then, we should have sp = H/σ − ω¯ to fully internalize social damage. Corporate liability is justified on the grounds that managers do not have enough wealth to pay for social damage (Polinsky and Shavell, 1993; Shavell, 1997). In our model, the principal is the government, not the corporation. The corporation and its management team are the agents. There is virtually no distinction between corporation and management because their interests can be aligned at no cost. Once the alignment of interests is costly, the manager is the agent, but the corporation becomes a supervisor or a quasi-enforcer. 7