A Cross-Sector Mechanism for Controlling Economic Crime in Public Companies
Date Issued
2011
Date
2011
Author(s)
Hsu, Yao-Yun
Abstract
The U.S. government has a remarkable achievement in prosecution of economic crime in the securities market, which is generally attributed to two crucial factors: the first is the parallel investigation by the Securities and Exchange Commission (SEC). It makes evidence collection prompt and complete, and then helps prosecutors obtain convictions in the shortest time; the second is prosecution agreements, through which prosecutors work with the charged corporation to prosecute related individuals responsible for the malfeasance. After the outbreak of Madoff scandal in 2008, the SEC reviewed its regulatory failure and believed that whistleblower protection and incentive offered by the Securities Exchange Act of 1934 were insufficient. Therefore, the relevant section was added to the Act in 2010. And a new SEC office was built to deal with various information received, then to filter what is under the table by means of risk management. In view of these developments, using the cooperative model of whistleblower, securities agency and prosecutor to combat economic crime in the securities market has become a trend.
Management fraud is the most common type of economic crime in Taiwan’s securities market. Although there are whistleblower awards, issued by the Financial Supervisory Commission (FSC) and the Taiwan Stock Exchange Corporation (TSEC), and various cooperative methods between prosecutors and the FSC, the investigating efficiency still falls short of expectations. Therefore, this thesis tries to figure the problems out though several critical cases such as the Rebar scandal, then undertakes comparative legal research to look for an appropriate reform direction. The chief results of this research are as follows:
(1) Parallel Investigations: the FSC offers a limited help to prosecutors’ evidence collection because it can investigate its regulated objects only. As for prosecutors, not having a sufficient competence in finance, they had brought many important charges but failed to meet the burden of proof. Legislators narrowed down the scope of the FSC investigation because they worried about its abuse of power. Tax agencies, however, have been authorized to investigate anyone related to the case in question but does not cause such controversy. In addition, the rights of those under investigation have been protected with administrative laws carried out gradually. To boost the prosecution efficiency, it will be necessary for the FSC to investigate anyone in violation of securities regulation and undermining the market order.
(2) Prosecution Agreements: the remotely similar concept in Taiwan is deferred prosecution. In quite a few special criminal laws adopting double punishment (i.e. the Bank Act), it is possible for prosecutors to use deferred prosecution for negotiation with the charged company, which reduces their burden of prosecution, although there are no such cases in practice. In view of controversies about corporate crime in America, this thesis asserts that, for the time being, it is unnecessary for Taiwan to follow America’s step. As regards crime committed by the corporate management, there are cases ending with deferred prosecution. To avoid encouraging opportunism, the correlation between justice and the principle of proportionality should be evaluated cautiously.
(3) Whistleblower Policy: protection and awards make the central concept. In Taiwan, whistleblowers have to risk being accountable for reporting without laws similar to the Sarbanes-Oxley Act of 2002; the FSC and the TSEC both offer bounties while the amount is not appealing. In order to early detect misconduct and prevent further damages, it will be necessary to legislate for whistle-blowing standards, recipients of fraud report, immunity from accountabilities and so on, and to raise bounty amount to motivate fraud disclosure.
(4) Information Filter: the FSC can obtain a variety of market information through affiliated organizations like the TSEC. It is capable of economic interpretation of this information while is not sensitive to the crime involved. An internal division, with expertise in finance and criminal justice, can be established to filter high-risk targets by information collection and analysis, then to investigate and evaluate for real-time crime detection.
Subjects
economic crime
financial crime
corporate crime
corporate governance
gatekeeper
whistleblower
state action
deferred prosecution agreement
non-prosecution agreement
parallel investigations
SDGs
Type
thesis
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