From a Voluntary to a “Coerced” Dimension: The Remedial Function of Compliance from a Criminal Law Perspective

Abstract

This chapter focuses on the relevance that corporate remediation, as fostered by the compliance paradigm, has in the sanctioning of corporate crime. The phenomenon of remediation can be considered to be a consequence of the interaction between compliance and corporate criminal law: on the one hand, the origins of compliance from within the field of regulatory law are mirrored in its aim to stimulate law-abiding behavior within companies even after illicit conduct occurs—by compensating victims, the restoration of damage, and implementing internal compliance systems to avoid the same crime happening again in the future. On the other hand, the “criminalization process” undergone by compliance has had an impact on its voluntary dimension. In some cases, public authorities impose compliance mandates on corporations as a condition of their continuing their activity. With settlements, criminal prosecution and conviction are used as threats to push companies toward adopting compliance measures, and external monitors can be appointed to oversee the compliance mandates. Settlements and monitorship then represent a privileged standpoint for investigating corporate remediation and its positive impact on the principle of culpable liability for corporations. The topic of corporate remediation indeed offers us an opportunity to consider the diachronic nature of corporate activity and provides a framework for modeling corporate punishment according to the “personality” of companies.