Discretionary justiceGilsinan, James F. ; Islam, Muhammed ; Seitz, Neil ; Fisher, James
2015 Journal of Financial Crime
doi: 10.1108/JFC-02-2014-0009
Purpose – The purpose of this paper is to understand the reasons why some financial crises do not result in extensive criminal prosecutions. Design/methodology/approach – The authors examine three major events: the crash of 1929 leading to the Great Depression, the collapse of the US Savings and Loan industry circa 1990 and the sub-prime mortgage meltdown. The authors explain how circumstances surrounding these financial collapses led to stark differences in criminal prosecutions. Findings – This review of prosecutions during three financial crises underscores the contingent nature of seeking criminal penalties for financial wrongdoing. The decision is influenced by a number of factors, including a prosecutor’s level of risk tolerance (probable win test); the potential economic impact of a successful conviction; the number of laws and regulations available in the prosecutorial tool kit; and the desired outcome which can range from new regulatory structures, to prosecutions that fix blame and satisfy the desire for scapegoats, to seeking financial penalties that shore up the government’s bottom line. Research limitations/implications – This study covers three crises and focuses on the US responses. A broader study could look across countries. Practical implications – Regulators and lawmakers are interested in avoiding future crises. Because crises are not anticipated, responses are determined by conditions of the moment. A frequent result is that laws and regulations are not in place. Decisions about likely preferred responses would allow anticipatory legislation and regulations. Social implications – Financial crises obviously have major implications for ordinary citizens far removed from the centers of finance. Improved responses to mitigate or avoid disasters would have profound impacts on people’s quality of life. Originality/value – The three crises have been studied individually. This work is different in that it examines the impact of a common set of factors over three crises covering a span of 80 years.
British law on corporate briberyMukwiri, Jonathan
2015 Journal of Financial Crime
doi: 10.1108/JFC-12-2013-0072
Purpose – This paper aims to assess the effectiveness of the Bribery Act 2010 in curbing corporate bribery. Design/methodology/approach – The paper takes a doctrinal focus in assessing UK bribery law using both primary and secondary sources. Findings – This paper finds that the effectiveness of the Bribery Act 2010 in curbing bribery lies in its approach of changing the basis for corporate criminal liability from focusing on the guilt of personnel within the company to focusing on the quality of the system governing the activities of the company. Companies have to address the risks of bribery or risk facing liability for failure to prevent bribery. With its regulatory approach to corporate liability, coupled with its extraterritorial reach, the Bribery Act is likely to change business cultures that facilitate bribery, thereby proving an effective law to corporate bribes. Originality/value – This paper highlights the deficiency of earlier laws in tackling corporate bribery, examines the crime of bribery from a company law perspective and argues that the regulatory strategy in the Bribery Act is likely to be an effective tool against bribery.
Legal questions on financial market abusePera, Alessandra
2015 Journal of Financial Crime
doi: 10.1108/JFC-01-2014-0003
Purpose – The purpose of this study is to underline the impact that globalization of financial markets has on national punishment policies. The US financial crisis has strongly affected consumers’ lives, but the focus of this research is on the national provisions against the illegal and unfair behaviour of economic actors, with special regard to a phenomenon that took place abroad, but whose effects came to light in many different countries. Design/methodology/approach – Different methodological approaches, both deductive and inductive, are combined in the present paper, together with comparative and philosophical insights on national Court decisions and scholar writings. Findings – As European Union (EU) member States experts are discussing about a lex mercatoria for the financial markets to govern the EU integration process, this study highlights some questions concerning mainly three aspects: the level of censorship; forms and nature of responsibility; punitive models and their micro- and macro-economic effects. Originality/value – The study offers insights into the possible answers in terms of criminal and private law remedies to fight financial market abuse in a global dimension, through the use of general principles of contractual and tort law, which are common among EU member State, as culpa in eligendo, culpa in vigilando, duty of information, duty of care, ecc (…) .
Directors’ duties in the context of ConfucianismLam, Charles KN ; Goo, S.H.
2015 Journal of Financial Crime
doi: 10.1108/JFC-05-2014-0022
Purpose – The purpose of this paper is to demonstrate how Confucianism can be applied in the areas that are now governed by company law in the common law system and how it can play a role in improving corporate governance. A gentleman in the context of Confucianism tends to be inclusive and broad-minded in embracing the interest of different stakeholders. In fact, he will balance the interests of shareholders and other stakeholders if there is any inherent conflict and try to achieve a win-win situation. Ultimately, he will run the company not just for profit-making but for social justice and commitment. Design/methodology/approach – The authors examine the leading cases in Hong Kong and the United Kingdom about the law of fiduciary duty and the duty of care and its relationship with Confucianism. In this respect, we review the teachings of the traditional Confucian texts and use Confucianism to fill in the gap where common law rules cannot reach. In addition, we adopt a comparative study approach in examining the law of directors’ duties in Hong Kong, China and the United Kingdom. Findings – It can be seen that the concept of fiduciary duty and duty of care is quite complicated and evolving and always subject to the interpretations of the court from time to time. For fiduciary duty, the term itself is quite conceptual and not immediately available to the general public. But loyalty in the context of Confucianism is a very lively and down-to-earth moral principle. Besides, fiduciary duty is imposed from outside, where directors had no choice but to accept. But loyalty in the context of Confucianism is something inherent and something from within. It is a moral principle that if you deeply understand the meaning of it, you will automatically accept it as a good virtue and your conduct will naturally be guided by such a principle. Confucianism can thereby be used to fill the gap where rules and regulations cannot reach. Confucian business ethics and common law rule should be complementary to each other in the development of a Chinese corporate governance system. Originality/value – This paper is the first of its kind in discussing the relationship between the law of directors’ duties and Confucianism. It argues that Confucianism plays a crucial role in guiding the behavior of the directors and can supplement the abstract principles of directors’ duties in the context of a Chinese corporate governance system.
Applying criminological theory to academic fraudWalker, Nicholas ; Holtfreter, Kristy
2015 Journal of Financial Crime
doi: 10.1108/JFC-12-2013-0071
Purpose – This paper aims to examine academic dishonesty and research misconduct, two forms of academic fraud, and provides suggestions for future research informed by criminological theory. Design/methodology/approach – After reviewing prior literature, this paper outlines four general criminological theories that can explain academic fraud. Findings – While criminological theory has been applied to some studies of academic dishonesty, research misconduct has rarely been examined within a broader theoretical context. Practical implications – This paper provides a blueprint for future theoretically informed analyses of academic fraud. Originality/value – This paper represents a unique attempt to apply general criminological theories to diverse forms of fraud in higher education settings.
The vexing problem of defining financial exploitationJackson, Shelly L.
2015 Journal of Financial Crime
doi: 10.1108/JFC-05-2014-0026
Purpose – The purpose of this paper was to study the vexing problem of defining financial exploitation. Advocates and practitioners in the field who have been battling financial exploitation are pleased to observe the increased attention that financial exploitation is receiving at all levels of society. With this increased attention, however, there has been a conflation of terms used to describe financial exploitation, resulting in some confusion about what constitutes financial exploitation. Design/methodology/approach – Fully recognizing that definitions serve different functions, this paper identifies three main purposes of a definition and then describes the myriad ways financial exploitation has been defined in the research literature, by organizations, and in civil and criminal statutes. Findings – Financial exploitation has been defined in multiple ways within and across categories. Furthermore, the definition has expanded over time. This paper proposes the need for greater definitional clarity around the concept of financial exploitation, and argues that at a minimum a distinction must be made between financial exploitation and financial fraud. Originality/value – This is the first paper to comprehensively review the myriad ways in which financial exploitation has been defined in the literature, by organizations and within state civil and criminal statutes.
Corporate frauds in India – perceptions and emerging issuesGupta, P. K. ; Gupta, Sanjeev
2015 Journal of Financial Crime
doi: 10.1108/JFC-07-2013-0045
Purpose – The purpose of this paper is to examine the nature and perception of corporate frauds in India and their consequences in the business and economic systems, and it highlights the emerging issues so that existing legal and regulatory obligations can be redefined and structured. Design/methodology/approach – An exploratory research was conducted through a combined mode of literature review; case studies; structured questionnaires from 346 sample companies; and 43 interviews with the corporate professionals, management, investors, government offices and authorities having wide experience. Findings – It was found that the regulatory system is weak, and there is dire need to redefine the role of auditors. Coordination among different regulatory authorities is poor, and after every scam, there is a blame game. Reporting of fraud and publication of fraud prevention policy are missing. Banks and financial institutions are ineffective on due diligence, and there is a lack of professionalism on the board and other executive levels in companies. Research limitations/implications – This study assumes that fraud could be mitigated by proactive and conscious action by auditors, and corporate executives are willing to avoid perpetrating financial fraud despite pressures from investors, government securities regulators and exogenous market fluctuations. The authors relied on the honesty of the respondents during the sample collection and recorded semi-structured interviews. A minimum level of five years’ work experience relative to preventing, detecting or investigating fraud has been considered a valid determinant in selecting the purposive sample. Practical implications – The study suggests mandatory publication of fraud prevention policy; constitution of special purpose corporate offence wing; recognition to companies for improved corporate governance; true adoption of International Financial Reporting Standards; due diligence by banks and financial institutions; compulsory appointment of professionals by shareholders and fixation of responsibility on independent professionals; intellectualisation of audit committee; and more powers to the regulators, especially Securities and Exchange Board of India. Social implications – Prevention of corporate frauds reduces anxiety, improves corporate image and builds up confidence of the investors, which is essential for resource channelling in financial markets. Originality/value – The research work is based on a thorough analysis of regulatory framework and fraud case studies and primary data collected from companies, banks and other government and developmental institutions.
Management models for international cybercrimeSmith, G. Stevenson
2015 Journal of Financial Crime
doi: 10.1108/JFC-09-2013-0051
Purpose – The purpose of this paper is to identify how the management structure of cybercriminals has changed and will continue to be revised in the future as their criminal business models are modified. In the early days of hacktivism, a distinction was made between a “hacker” and a “cracker”. The hacker was considered someone who was interested in the vulnerabilities in a computer system, but they were not out to exploit these vulnerabilities for illicit gains. Today, this is no longer true, as loosely coordinated gangs of computer hackers exploit vulnerabilities of financial institutions and the public to steal and transfer money across borders without difficulty. Design/methodology/approach – The paper reviews legal cases dealing with the computer theft of assets from financial institutions and individuals. The focus is on external exploits of hackers not on employee’s theft of assets. It explores the management structure used by cybercriminals who have been caught and prosecuted by legal authorities in the USA and other countries. The paper discusses how this management structure has evolved from older traditional crime business models based on “family” relationships to morphing criminal gangs based in Russia, the Ukraine and other locations almost untouchable by the US legal authorities. These new criminal networks are based on knowledge relationships and quickly disappearing network connections. The paper concludes with a discussion regarding the management structure cybercriminals will follow in the future, as they continue their criminal activities. Findings – The study provides indications of a trend toward more complex management and organizational structures among cybergangs. Originality/value – Although there are many annual studies identifying the growth of cybercrime and the types of attacks being made, but there is not even a single study that shows how the cybercrime business model has changed over the past 20 years. From that perspective, the paper provides information of a changing and more effective business model for cyberattacks.
Making Hong Kong companies liable for foreign corruptionMichael, Bryane
2015 Journal of Financial Crime
doi: 10.1108/JFC-01-2014-0002
Purpose – The purpose of this article is to assess the extent to which Hong Kong’s laws deter its companies from engaging in corruption and bribery abroad. Design/methodology/approach – A mix of economics, public administration, management and legal analysis was used to assess weaknesses in Hong Kong’s laws governing the prohibition of bribe payments abroad. Findings – Hong Kong does not explicitly criminalise corporate bribery abroad. Companies – as legal persons – can not be found guilty of corruption. It is argued that Hong Kong’s Legislative Council should amend various laws to modernise Hong Kong’s approach to tackling corruption committed by its companies abroad. The various approaches lawmakers can take towards assigning responsibility for corruption to companies are presented. The approaches that prosecutors at the Department of Justice can take to adopt prosecutorial methods like those used in other upper-income jurisdictions and the ways that Independent Commission Against Corruption (ICAC) can assist in this work are also described. Practical implications – This research has practical findings for Hong Kong’s policymakers, law firms and companies which operate in Hong Kong. For policymakers, we describe legal changes Hong Kong’s legislators will likely make in the years ahead and the preferred ways of engaging in such change. For law firms, we describe the legal changes coming to Hong Kong which legal advisors will need to advise their clients on. For companies, we describe changes that companies operating in Hong Kong will likely need to comply with in the future. Social implications – This paper shows that when Hong Kong adopts best practice in the field of corporate criminalisation, Hong Kong’s role in “exporting” corruption will likely fall. Originality/value – This article describes a set of legal changes which will change the way Hong Kong treats corruption. The literature tends to glamorise Hong Kong’s anti-corruption work. It is shown that its law falls far behind other jurisdictions, as well as how “treating companies like people” in the case of Hong Kong will likely change the way Hong Kong’s prosecutors think about crime and criminal perpetrators.