Browsing by Author "Heese, Francisca Alida"
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- ItemThe models of attribution in the establishment of corporate liability revisited(Stellenbosch : Stellenbosch University, 2019-04) Heese, Francisca Alida; Stevens, Richard; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT : The separate legal personality of a company is one of the cornerstones of modern corporate law. Nevertheless, due to the artificial nature of a company it has no inherent moral blameworthiness necessary to impose corporate liability. With a rise in corporate wrongdoing, there is a need to hold companies liable. Therefore, certain models of attribution have developed whereby the conduct and will of a corporate actor can be imputed to the company to establish corporate liability. Especially in the realm of corporate criminal liability, these models of attribution have played a pivotal role to establish corporate wrongdoing. The two broad theories underlying the models of attribution are the fiction and realist theories respectively. The directing minds doctrine or identification doctrine and the vicarious liability model are traditionally associated with the fiction theory, which is rooted in the abstract nature of a company. Whether the traditional models of attribution are suited for complex modern organisational structures, is explored in this thesis, whilst a more functional and realistic approach to corporate liability is proposed. Often the question of “what is a corporation” has overshadowed the determination of corporate liability, thus a more contextual analysis based on law and economics is proposed to ensure corporate liability. The development of the rules of attribution through case law illustrate the importance of a purposive approach to establishing corporate liability. Furthermore, the underlying relationship between the rules of attribution and the rules of agency indicate that the interests of risk-bearers and managers are not always aligned and should be redressed. Moreover, a realist approach as opposed to the fictional approach to attribution has been developed in English and Australian law. This approach focuses on the overarching corporate culture and identity when determining corporate fault, instead of individual corporate actors. These regulatory frameworks provide an alternative approach to the current South African model, which is based on the fiction theory. Lastly, the economic considerations, such as the separation of ownership and control and the agency problem, are evaluated to determine whether the current models of attribution create an economically efficient outcome or an unsustainable a risk-taking environment.