Cases such as the bribery scandal at Siemens pose the question of the sanctioning of corporations and the necessity of in-house measures for the prevention of criminal activity. This study analyzes the German and US-American law of corporate sanctions, paying special attention to new forms of "regulated self-regulation" (especially the so-called compliance measures). Proposals for the reform of the German law of corporate sanctions are based on this analysis.

State reg­u­la­tion of cor­por­a­tions is tra­di­tion­ally car­ried out in the form of eco­nom­ic pres­sures ap­plied by means of private law and com­mer­cial ad­min­is­trat­ive law. In re­cent dec­ades, however, pub­lic sanc­tion­ing law has en­joyed in­creas­ing pop­ular­ity as a means of com­bat­ing the "so­cial evils" caused by cor­por­a­tions. Com­pre­hens­ive sanc­tion­ing of cor­por­a­tions is the sub­ject of per­sist­ent de­mands in the pub­lic and jur­is­pru­den­tial spheres as a res­ult of the nu­mer­ous re­cent eco­nom­ic scan­dals (at cor­por­a­tions such as En­ron in the USA and Siemens in Ger­many). In ad­di­tion to sanc­tion­ing, there has been a re­cent trend to­wards at­tempt­ing to pre­vent vi­ol­a­tions of the law be­fore they are com­mit­ted. In light of the state’s lim­ited op­tions and re­sources, the pos­sib­il­ity of co-opt­ing cor­por­a­tions has taken cen­ter stage in the de­bate on state-private co-reg­u­la­tion. Com­pli­ance pro­grams, which in­clude in­tern­al cor­por­ate guidelines and struc­tures de­signed to pre­vent and de­tect crime, rep­res­ent an es­sen­tial ele­ment of the cor­por­ate side of these kinds of meas­ures.

The spe­cif­ic sub­ject of this re­search pro­ject is the cur­rent de­vel­op­ment in the area of white col­lar crime and the law of non-crim­in­al reg­u­lat­ory of­fenses in Ger­many and the USA with re­spect to the leg­al re­quire­ments of cor­por­ate crim­in­al re­spons­ib­il­ity, the types of pos­sible sanc­tions, and the cor­res­pond­ing sig­ni­fic­ance of com­pli­ance meas­ures. The avail­able re­search to date takes only isol­ated as­pects of com­pli­ance meas­ures and of cor­por­ate sanc­tion­ing in­to ac­count. An isol­ated ana­lys­is of in­di­vidu­al ele­ments, however, fre­quently yields a dis­tor­ted pic­ture, be­cause, for ex­ample, sen­ten­cing reg­u­la­tions in the USA of­ten serve to cor­rect weak­nesses in sub­stant­ive law.

The goal of this pro­ject is to de­vel­op a concept of state-private reg­u­la­tion in a com­pre­hens­ive sys­tem of cor­por­ate re­spons­ib­il­ity, in­clud­ing sanc­tions and cor­por­ate com­pli­ance meas­ures. The pro­ject will pre­pare a leg­al policy re­com­mend­a­tion in which com­pli­ance meas­ures will be le­gis­lated as part of a re­form of the Ger­man law of cor­por­ate sanc­tion­ing. The law of cor­por­ate sanc­tion­ing in Ger­many and in the USA as well as the sig­ni­fic­ance of com­pli­ance meas­ures in the two sys­tems are stud­ied as pre­lim­in­ary is­sues.

Meth­od­o­lo­gic­ally, the study fol­lows a tra­di­tion­al com­par­at­ive leg­al ap­proach. The USA provides a good com­par­is­on to Ger­many, first, be­cause of its long ex­per­i­ence with the crim­in­al sanc­tion­ing of cor­por­a­tions, and second, be­cause of its already far-reach­ing im­ple­ment­a­tion of com­pli­ance meas­ures in nu­mer­ous areas of the law. In the first sec­tion, Ger­man and Amer­ic­an le­gis­la­tion, lit­er­at­ure, case law, and em­pir­ic­al data will be stud­ied. These sources will be ana­lyzed and presen­ted with re­gard to sub­stant­ive, sanc­tion­ing, and pro­ced­ur­al reg­u­la­tions. The com­par­at­ive law sec­tion, which fol­lows the two coun­try re­ports, sub­jects the na­tion­al reg­u­la­tions to a com­par­at­ive ana­lys­is with re­spect to sim­il­ar­it­ies and dif­fer­ences. Fi­nally, based on the res­ults of the leg­al com­par­is­on, the third sec­tion will de­vel­op a re­form pro­pos­al.

The res­ults to date show that in the USA crim­in­al pun­ish­ment has be­come a cent­ral ele­ment in state reg­u­la­tion of cor­por­ate be­ha­vi­or. In the af­ter­math of the in­tro­duc­tion in 1991 of the com­pli­ance ap­proach as part of the sen­ten­cing guidelines, the ap­proach has gained great in­flu­ence on le­gis­la­tion and the prac­tice of law. Today, the im­port­ance of com­pli­ance pro­grams far ex­ceeds the goals ori­gin­ally pur­sued in the area of sen­ten­cing. Via the act­ive in­clu­sion of cor­por­a­tions, the ap­proach proves to be an ef­fect­ive meth­od of cre­at­ing cor­por­ate struc­tures that de­ter the com­mis­sion of crime and fa­cil­it­ate their de­tec­tion.

This pro­ject is a doc­tor­al dis­ser­ta­tion su­per­vised by Prof. Dr. Ul­rich Sieber, Uni­versity of Freiburg.