Private enforcement against corporate frauds- focusing on the whistleblower protection
Date Issued
2015
Date
2015
Author(s)
Liu, Wei-Hong
Abstract
With more and more prosperous developments in the fields of industry and commerce, corporations have more impact in our economy and the public. Especially when the financial fraud was taken place in corporations, it always resulted in a tremendous damage. Therefore, we must emphasize on regulations to against and deter the corporate fraud. The methods of enforcing regulations to deter the corporate fraud are not only public but also private enforcements. In the aspect of private enforcements, they are divided into two parts, which are private right of initiation and private rights of action, respectively. The latter are the rights that private litigants can suit the person allegedly violating regulations and advocate claims when fraud occurs. However, compared with the former, private rights of action are afterwards. In contrary, private rights of initiation are the rights that people who discover the corporate fraud can immediately disclose it to the authority or the general public. It is the more direct method to prevent the corporate fraud. The major discussion under the rights of initiation is the Whistleblower Protection Act. In overseas, Whistleblower Protection Act is widely applied in many aspects such as in public authorities to prevent civil servants from corruption or in the financial market to deter the corporate fraud. However, we still lack of this kind of whistleblower protection mechanism in our legislation. Thus in this article we will focus on discussing how to construct the analogous whistleblower protection mechanism. Furthermore, we will also discuss how to design our own mechanism in financial market to prevent the corporate fraud by the means of legislation. It should be designed to make the potential whistleblower willing to stand out to blow the whistle. Therefore, our discussion will be divided into three parts including procedures, protections and rewards based on the Sarbanes-Oxley Act, the Dodd-Frank Act and the discussion from scholars. Our final discussion is who should be applied to the whistleblower protection mechanism in our regulation. We classify three different roles containing employees, managers and supervisors in the corporation. In supervisors, we focus on external people who are delegated to supervise the companies according to the contract between them, such as auditors, attorneys, underwriters or credit rating agencies typically named gatekeepers. Last but not least, even though this regulation is not possible to applied comprehensively, we still have to design the proper mechanism of initiation for these three roles in order to prevent the fraud and protect the public interest.
Subjects
private enforcement
private right of initiation
whistleblower
gatekeeper
Sarbanes-Oxley Act
Dodd-Frank Act.
Type
thesis
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ntu-104-R01a21105-1.pdf
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