The models of attribution in the establishment of corporate liability revisited

[摘要] ENGLISH ABSTRACT : The separate legal personality of a company is one of the cornerstones of moderncorporate law. Nevertheless, due to the artificial nature of a company it has no inherentmoral blameworthiness necessary to impose corporate liability. With a rise incorporate wrongdoing, there is a need to hold companies liable. Therefore, certainmodels of attribution have developed whereby the conduct and will of a corporate actorcan be imputed to the company to establish corporate liability. Especially in the realmof corporate criminal liability, these models of attribution have played a pivotal role toestablish corporate wrongdoing. The two broad theories underlying the models ofattribution are the fiction and realist theories respectively. The directing minds doctrineor identification doctrine and the vicarious liability model are traditionally associatedwith the fiction theory, which is rooted in the abstract nature of a company.Whether the traditional models of attribution are suited for complex modernorganisational structures, is explored in this thesis, whilst a more functional andrealistic approach to corporate liability is proposed. Often the question of 'what is acorporation has overshadowed the determination of corporate liability, thus a morecontextual analysis based on law and economics is proposed to ensure corporateliability.The development of the rules of attribution through case law illustrate theimportance of a purposive approach to establishing corporate liability. Furthermore,the underlying relationship between the rules of attribution and the rules of agencyindicate that the interests of risk-bearers and managers are not always aligned andshould be redressed.Moreover, a realist approach as opposed to the fictional approach to attribution hasbeen developed in English and Australian law. This approach focuses on theoverarching corporate culture and identity when determining corporate fault, insteadof individual corporate actors. These regulatory frameworks provide an alternativeapproach to the current South African model, which is based on the fiction theory.Lastly, the economic considerations, such as the separation of ownership andcontrol and the agency problem, are evaluated to determine whether the currentmodels of attribution create an economically efficient outcome or an unsustainable arisk-taking environment.

[发布机构] Stellenbosch University