Organizational Crime: Causes, Explanations and Prevention in a Comparative Perspective

Preface
Contents
Contributors
Introduction
How to Explain and Fight Organizational Crime
1 The State of Play
2 Our Main Conjectures
3 The Main Objectives of This Book
4 The Main Findings
References
How to Analyze Organizational Crime – Theory, Concepts, and Methods
1 The State of the Art
2 How to Define Organizational Crime
3 How to Conceptualize Organizational Crime
3.1 How to Conceptualize and Analyze the Institutional Order
3.2 The Analysis of Organizational Rule-Breaking
4 How to Do Research on Organizational Crime
4.1 Mapping the “Dark Field” of Organizational Crime
4.2 Mapping Detected Corporate Crime Cases
4.3 Mixed Methods Approaches
5 Conclusions
References
Corporate Crime, Manipulation, and Compliance: The Case of Germany a) The Corporate Sector
The Development of the German Criminal Regulations Against Corruption in the Public Sector
1 The Development of the Criminal Regulations from 1871 to Date
2 The Current Criminal Regulations Against Corruption with Regard to Public Officials
3 The Prosecution and Sanctioning of Corruption in the Public Sector
References
The Development of German Criminal Law Against Corruption in the Private Sector
1 The Need to Combat Corruption in the Private Sector
2 International Legal Instruments to Combat Private Corruption
2.1 Joint Action on Corruption in the Private Sector
2.2 International Legal Acts in Line with the Content of the Joint Action
2.3 Council Framework Decision 2003/568/JHA of 22.07.2003 on Combating Corruption in the Private Sector
3 New Criminal Law Regulation of Private Corruption by the German Legislator
3.1 Introduction of Offences Against Competition by the “Act to Combat Corruption (KorrBeKG)” of 13.08.1997
3.1.1 Collusive Tendering (Section 298 German Criminal Code)
3.1.2 “Taking and Giving Bribes in Commercial Practice” (Section 299 Ff. German Criminal Code)
3.1.3 Request to Prosecute (Section 301 German Criminal Code)
3.1.4 Expansion of Section 299 German Criminal Code to Include the Principal-Agent Model
3.1.5 Bribery and Corruption in Health Care
3.1.6 Criminal Liability for Sports Betting Fraud and the Manipulation of Professional Sports Competitions
3.1.7 Protection of Competition Through Fines
4 Flanking the Fight Against Corruption by Fiscal Measures
4.1 Prohibition of Tax Deduction for Grants of Benefits and Related Expenses
4.2 Requirement of Intentional Behavior
4.3 Requirements for Proof of the Offence
5 Obligation to Report Acts of Corruption
5.1 Obligations of the Tax Authorities to Notify the Law Enforcement Agencies
5.2 Obligations of the Public prosecutor’s Office to Report the Outcome of Criminal or Administrative Fine Proceedings
5.3 Obligations of Law Enforcement Agencies and Administrative Authorities to Inform the Tax Authorities
6 The Ban on Public Procurement
7 Introduction of a Corruption Register
8 Penal Regulations
9 Empirical Data and Corruption
10 Conclusion
References
German Corruption Cases Reflected in Criminal Files—Individual or Organizational Deviance?
1 Introduction
References
Compliance, Integrity, and Prevention in the Corporate Sector: The Collective Mindsets of Compliance Officers in Germany
1 The Regulatory Environment of Germany
2 Method and Analytical Framework
3 Sample
4 Analytical Steps
5 The Collective Mindsets in German Compliance Departments
5.1 The Collective Mindset of Enforcement and Deterrence
5.1.1 Selection
5.1.2 Reformulation
5.1.3 Formation of Abstract Categories
5.1.4 Abstraction of Order
5.1.4.1 The Cognitive Order
5.1.4.2 The Normative Order
5.1.5 Comparison
5.1.6 Identification of Rules
5.1.7 Contextualization
5.1.8 Explanation
5.2 The Corporate Responsibility Mindset
5.2.1 Selection
5.2.2 Reformulation
5.2.3 Formation of Abstract Categories
5.2.4 Abstraction of Order
5.2.4.1 The Cognitive Order
5.2.4.2 The Normative Order
5.2.5 Comparison
5.2.6 The Identification of Rules
5.2.7 Contextualization
5.2.8 Explanation
6 Discussion
6.1 Explanation of the Findings
6.2 Evaluation of the Findings
6.3 Weaknesses and Strengths
6.4 Progress of Knowledge in Relation to the Current Research
7 Concluding Remarks
References
Limits of Formal Regulation: How Informal Norms and Criminogenic Values Affect Managers’ Readiness to Corrupt
1 Theoretical Foundations
2 State of the Art
3 Study Design
4 Operationalizations and Studies on Measurement Quality
4.1 Readiness to Corrupt
4.2 Norms
4.3 Values
4.4 Control Variables
5 Results
5.1 Description
5.2 The Readiness to Engage in Organizational and Individual Corruption
5.3 Norms and Organizational Readiness to Corrupt
5.4 Values and Organizational Readiness to Corrupt
5.5 Norms, Values, and Organizational Readiness to Corrupt
6 Summary and Conclusion
References
Experimental Corruption Research in Germany: The Lab Studies
1 Introduction
2 Hypotheses on Organizational Culture and Corruption
3 The Experimental Design
4 Results
5 Conclusion and Discussion
References
Corporate Crime, Manipulation, and Compliance: The Case of Germany b) The Medical Sector
The German Organ Transplant Scandal: An Analysis of Court Records and Official Documents from the Medical Association
1 Introduction: The Regulations and Institutional Settings in the Transplant Sector
2 The Analysis of Structural Data
2.1 Methodological Approach
2.2 Black Sheep and Bad Apples?
2.3 Individual or Systemic Deviance?
2.4 How Many Did It?
2.5 Loose Controls and Strong Opportunities
2.6 Legal Incentives for the Professionals
2.7 The Benefits for the Hospitals
3 Deterrence: The Test Period 2013–2015
4 Conclusion
References
The German Organ Transplant Scandal: The Collective Mindsets of Physicians
1 Introduction
2 Methodology
3 Findings of the Analysis
3.1 Competitive Pressure
3.2 Reimbursement Economics
3.3 Hierarchical Pressure
3.4 The Justifications for the Guideline Violations
3.5 The Internalization of Professional Deviance
References
Decision-Making Processes of Physicians After the Organ Donation Scandal in Germany: The Factorial Survey
1 Introduction
2 Theoretical Basics
3 Hypotheses
4 Study Design
5 Operationalization
5.1 Readiness to Violate Rules in Dilemma Situations
5.2 Acceptance of Legal Norms
5.3 Perceived Deterrence
5.4 Formal Norms of the Organization
5.5 Informal Norms of the Organization
5.6 Organizational Framework of Conditions
5.7 Control Variables
5.8 Vignette of the Factorial Survey Part
6 Results
6.1 Description
6.2 Hypothesis 1: Acceptance of Legal Norms
6.3 Hypothesis 2: Perceived Deterrence
6.4 Hypothesis 3: Formal Norms of the Organization
6.5 Hypothesis 4: Informal Norms of the Organization
6.6 Hypothesis 5: Organizational Framework of Conditions and Patient Characteristics—Results From the Factorial Survey
7 Conclusion
References
Corruption, the FCPA, and Compliance Regulations in the U.S.
In Search of Organizational Crime in the U.S.: the FCPA Court Records
1 Introduction
2 Research Strategy and Methods
2.1 Selection Methods: Full Census and Purposive Sampling
2.2 Survey Methods: Document Analysis and Case Study
2.3 Evaluation Methods: Modus Operandi Study and Institutional Analysis
3 The Evolution of the FCPA Enforcement Regime (1977–2018)
4 FCPA Case Studies: Individual vs. Organizational Corruption
4.1 U.S. V. Rolls-Royce PLC
4.2 U.S. V. SBM Offshore
4.3 U.S. V. Alstom
4.4 Excursus: A Note and Update on Siemens
4.5 Cross-Case Comparison
5 The Aggregated View on FCPA Enforcement Actions (1977–2018)
6 Conclusion
References
Compliance, Integrity, and Prevention in the Corporate Sector: The Collective Mindsets of Compliance Officers in the USA
1 Introduction
2 The New Institutional Theory and the State of Art
2.1 The New Institutional Theory Approach
3 Research Design and Methods
3.1 Sample
3.2 Analytical Steps
4 The Regulatory Environment of Compliance in the USA
4.1 The United States Sentencing Guidelines
5 Interview Analysis
5.1 Case Study. Doing Compliance: The Collective Mindsets of Compliance Officers in the US
5.1.1 Selection
5.1.2 Reformulation
5.1.3 Formation of Abstract Categories
5.1.4 Abstraction of Order
5.1.4.1 The Cognitive Order
5.1.4.2 The Normative Order
5.1.5 Comparison
5.1.6 Identification of Rules
5.1.7 Contextualization
5.1.8 Explanation
5.2 Variances and Supplements Concerning the Rational-Choice Model of Doing Compliance
5.2.1 How to Explain and Prevent wrongdoings—The “Good and the Evil” Mindset (N = 9)
5.2.2 How to Explain and Prevent Wrongdoings—The “Integrity as Guiding Principle” Mindset (N = 3)
6 Discussion of the Findings
7 Conclusions
References
Systemic Corruption in Brazil
Formal Rules and Institutional Increments in Brazil
1 Introduction
2 Changes in the Legal and Institutional Landscape
3 Changes in the Corporate Landscape
References
Organizational Crime in Brazil: The Petrobras Case
1 Introduction
2 The Petrobras Scheme and Operation Car Wash
3 Dataset and Methodological Proceedings
4 Analysis of the Cartel’s Organizational Wrongdoing
4.1 Modus Operandi and Triggers for the Cartel Agreement
4.2 The Direct Benefits for the Companies
4.3 The Bribe Payers and Organizational Incentives
4.4 Establishment of a Corrupt Subculture and Institutionalization of Unwritten Rules
4.5 The Brazilian Environment
5 Discussion
References
The Anti-Corruption Mindset of Brazilian Law Enforcers
1 Introduction
2 Data and Methodological Issues
3 Results: How to Fight Corruption in Brazil?
3.1 Evolve as a Condition to Fight Corruption: Import, Copy, and Learn
3.2 Legitimation of the Illicit to Eradicate Corruption
4 Discussion
5 Conclusion
Appendix I
References
Corruption in China
New Laws and Law Enforcement to Fight Against Bribery in China
Detected Cases of Bribery in China: The Analysis of Court Records
1 Results from Data on Criminal Proceedings: The Scope of Corruption
2 Institutional Analysis—Four Case Studies
3 Results
References
Epilogue - Coping with Organizational Crime
Companies as Responsible Actors and Corporate Citizens—Corporate Criminal Responsibility Under the Rule of Law as a Consequence
1 Causes and Consequences of Law Infringements Committed Within and by Corporations
1.1 Functionality of Criminological Studies Regarding Criminogenic Corporate Environments for Legal Policy
1.2 Wrongdoing in Companies and Criminology—Critical, Systems-Theoretical, and Traditional Etiological Approaches to Explaining Corporate Crime
1.2.1 Corporate Crime as a Systemic Phenomenon of the Capitalist Economic Order—Companies as “a Race of Devils”
1.2.2 Corporate Crimes as an Exemption (Deviation) of Corporations Capable of Being Responsible
1.2.3 Corporate Crime as a Case of “Useful Illegality”?
2 The General Constitutional and Legal-Political Framework of New Legislation Against Corporate Malfeasance
2.1 Constitutional Objections to Corporate Criminal Law
2.2 Corporations as Actors of Modernity
2.3 Political Framework for the Introduction of a New Regulation
3 Legislative Decision to Introduce a Criminal Sanctions Regime Against Legal Entities
3.1 Reasons for a Criminal Sanctions Regime
3.2 Key Disadvantages of an Administrative Intervention System or a Measures Regime as an Alternative to Criminal Law
3.3 The Liberal Dimension of Criminal Law
4 Necessary Rule of Law (“Rechtsstaatlichkeit”) of Punishment of Corporate Citizens
5 Parallel Punishment of the Corporation and Its Individual Employees
6 The Inclusion of Integrity-Related Compliance
6.1 The Need for Compliance in Corporations and Legal Entities as a Preventive Measure
6.2 Compliance as a Prime Example of “Regulated Self-Regulation”
6.3 The Adverse Effects of Conventional Compliance Structures
6.4 Advantages and Disadvantages of “Integrity-Oriented Compliance”
6.5 Compliance as an Instrument to Stabilize Values Recognized by Society?
References
The Puzzling Resilience of Organizational Wrongdoing: Some Policy Implications for a Global Regulation Regime
1 Organizational Wrongdoing: A Less Traveled Territory
2 Objectives, Methods, Concepts, and Mode of Analysis
3 The Lessons Learnt
4 The Social Context of Wrongdoing: Comparing the Global North and South
5 Organizational Wrongdoing Seen in the Context of Compliance Theory and Remedial Policy
6 Conclusion
References