Criminal liability of corporate leaders in Cambodia in light of French law
Author: Nann, Chanroeurn
Under the direction of: Anne-Sophie Chavent Leclere
Jean Moulin Lyon 3 University
Texte français
Keywords: Law, Cambodia, Criminal liability, Corporate executive, White collar, Elite delinquent, Decriminalization, Abuse of corporate assets, Breach of trust, Double criminality, Obligation to incriminate, Clandestine infarctions, Whistleblower, Compliance, Imputation, Legal persons, Criminal sanction, Cambodia, Association, Corporate executives - Cambodia - Law - France, Legal persons - Criminal liability, Culpability (law), Breach of trust.
Abstract
The corporate leaders could constitute a category of white-collar offender. The study of their criminal liability is necessary for a developing country like Cambodia and must consist to, in light of French law, determine firstly the scope of criminal liability in order to establish later the regime. According to the comparative and formal analyze, the area of accountability is limited, because there is, in case of flagship infraction, not only the violation of abuse of corporate assets, but also the specific breach of trust, which is doubled by the breach of trust. The other offenses involving corporate leaders are also limited regarding the French law which undergoes the phenomenon of decriminalization. This is explained by not only redundant incrimination but also the scarcity of obligation to incriminate. The pragmatic analyze reveals that incrimination field can be somewhat enlarged through a possible extensive interpretation of case law and by application of the incriminations of penal code. Yet the scope of the liability is reduced again because of the obstacles to repression, whether it is the absence of an effective detection procedure adapted to clandestine offenses, of the involvement of private actors, like whistleblowers, in repression processes or even the promotion the rights of victims and associations defending the social root causes. The preventive measures such as corporate governance and compliance are not intended to replace criminal sanction. The study of the regime of criminal liability of corporate leaders confirms that, like French law, the function of the leader can be taken into account by the judge in order to characterize the infractions. The imputation of an infringement physically carried out by the employees is possible under conditions that it is limited to offenses concerning the violation of a regulation ; beside this restriction and in case of intentional implication of leaders in the fulfillment, the subjective imputation can be adopted on legal exemption, because the regime of complicity is not adapted in this situation. The concept of charging infringement to corporate leader must be the subject of a reflection, just like the mechanism of the criminal liability of legal persons, which must be conceived as a tool for relieving the criminal liability of corporate leaders.
