Criminal Liability of Managers for Excessive Risk-Taking?

Abstract

The aim of the thesis was to analyse and evaluate the criminalisation of excessively risky decisions taken by managers of limited liability companies. The potentially disastrous consequences of excessive risk-taking were powerfully highlighted by the most recent financial crunch, although its dangers are not limited to the times of economic crisis. In the same time risk taking is at the very beginning and at the very core of business activity. By criminalising managers’ excessive risk-taking criminal law enters a sphere, which is at the core of the activity it affects. This research examines possibilities to punish excessive risk-taking in three selected legal orders representing three different models of criminalisation and analyses whether it is justified and proportionate to criminalise excessive risk-taking. Since the latter proved to be the case, it formulates a blueprint how to design criminalisation of such acts taking into account the factual and legal background within which such a criminalisation would have to be fitted. This proposal might serve the national legislator as well as potentially the European one. The methodological approach chosen for this study is composed of an in-depth study of the three selected legal systems, functional comparison of identified solutions as well of a normative study aiming at proposing recommendations for a use of criminal law to counter excessive risk-taking. In order to examine criminalisation of excessive risk-taking three legal orders containing relevant provisions have been identified: England and Wales, France, Germany. As to the first, the Fraud Act 2006, in particular fraud by abuse of position provides a possibility to punish a manager who dishonestly abuses his position by exposing the company to excessive risk. The French offence of abus de biens sociaux punishes high-level managers for acting against the company’s interests. Exposing the company to excessive risk is one of the forms of acting against these interests. The offence of Untreue in German law punishes improper conduct in relation to entrusted property if the conduct results in damage. However the theory of “schadensgleiche Vermögensgefährdung” associates, under certain conditions, endangerment with damage and thus excessive risk-taking is also incriminated. Furthermore the study discusses whether it is justified and proportionate to criminalise excessive risk-taking by providing a normative framework including the theories on reasons for criminalisation (such as the harm theory and the theory of legal goods) as well as principles limiting the use of criminal law (Principle of Ultima ratio and the Principle of Proportionality as well as legal certainty and fair warning), and further analysing the problem of excessive risk-taking by mangers against its backdrop. It demonstrates that to a certain extent it is justified to criminalise excessive risk-taking by managers in companies and examines what should be the conditions and boundaries of criminalisation of excessive risk-taking, which variables the legislator may use in defining it, and what may be the consequences of particular choices. Secondly, in view of these findings, the three national regulations are examined as regards whether they fulfil the criteria of criminalisation elaborated in this study.