기업 범죄와 처벌: 도전 과제와 해결책

### 기업 형사 처벌의 딜레마
* 🏦 HSBC는 범죄 카르텔을 방조하고 제재를 위반한 혐의로 기소되었지만 **벌금은 수익의 극히 일부**에 불과해 기업의 범죄에 대한 책임을 묻는 것에 대한 의문이 제기되었습니다.
* 🏛 법인격은 기업이 개인처럼 법적 권리를 누릴 수 있게 해주지만, **심각한 범죄를 저질러도 형사 기소를 당하는 경우는 거의 없습니다.**
* 💰 라이선스나 면허를 취소하면 경제적, 사회적으로 큰 영향을 미칠 수 있기 때문에 당국은 종종 **벌금을 처벌**로 선택합니다.
* 🏥 엘리자베스 워런 상원의원은 의료 시설에서 사망으로 이어지는 비용 절감 조치에 대해 **투자 경영진에게 형사 책임을 묻는 법안**을 제안했는데, 이는 치료보다 이윤을 우선시하는 것으로 알려진 **사모펀드**를 겨냥한 것입니다.
* 📈 기업 벌금은 증가했지만, '감옥에 가기엔 너무 크다'는 인식 때문에 **실제 기업 폐쇄를 초래할 수 있는 유죄 판결은 감소**했습니다.
* 🏦 엔론 스캔들에 연루되어 유죄 판결을 받고 이후 문을 닫은 **아서 앤더슨의 사례**는 기업을 처벌한 마지막 중요한 사례로 꼽힙니다.
* 💸 기업은 종종 책임을 전가하고, 더 나은 법적 대리인을 선임하며, **기업과 당국 사이의 회전문**을 통해 이익을 취하기 때문에 책임을 묻기가 어렵습니다.
* ⚖ 한 가지 제안된 해결책은 불법 행위로 기소된 기업의 의사 결정을 감독하는 **'가석방 담당관'**을 지정하여 억지력을 발휘하고 거버넌스 개혁을 촉진하는 것입니다.

HSBC의 범죄 행위는 기업에게 책임을 묻는 것이 얼마나 어려운 일인지, 더 엄격한 처벌과 감독이 해결책이 될 수 있음을 강조합니다.

in 2012, the Hong Kong Shanghai Banking Corporation, best known simply as HSBC, was charged by authorities for aiding and abetting operations of some criminal cartels between the US and Mexico. The bank was found to have systematic failures in its anti-money laundering or AML controls, which in addition to helping the cartels, also assisted Iran and North Korea circumvent nuclear weapon sanctions. Corporate personhood is the legal notion that corporations have many of the same legal rights and responsibilities enjoyed by natural flesh and blood people. They can own property, sue and be sued, donate to political campaigns, and even have defended religious beliefs. But if a normal person was found laundering money for cartels and the North Korean nuclear program, they would be living it up here at ADX Florence, if they were lucky. HSBC, on the other hand, still operates across the world, and their punishment for these crimes would be like a normal person getting a fine for roughly 2 months of their wages. So if corporations are legally people, why can't they be

arrested. Are you arguing to let Airlines, for example, fail? Yeah, why? I mean, how does that make sense in the broader scheme of the econ? Another Boeing whistleblower has died. A second Boeing whistleblower now dead. What they're really telling you is they just won't fight for it. Well, Healthcare is a basic human right, and I will fight for basic human rights. Corporate greed loose in our healthcare system kills people. Attorney General Lanny Brewer, who was in charge of the HSBC case, resisted criminal prosecution because that could potentially cause the bank to lose its US Charter to operate as a bank in America. That would be a death blow to HSBC because an International Bank that can't move US Dollars would be about as competitive as a Home Depot that couldn't sell hammers. In a press release, he stated, Our goal here is not to bring HSBC down. It's not to cause a systematic effect on the economy. It's not for people to lose thousands of jobs. It's very.

unusual to have a criminal prosecutor directly 
say to the media that their intention is not to bring down the party that they are Prosecuting. The 
Wikipedia section for all of HSBC's controversies is longer than the Wikipedia page for the pope, 
but this is still just one company that speaks to a bigger problem of being too big to jail. 
If companies see fines as just the cost of doing business, what reasonable punishments are 
there for organizations that break the law, which doesn't just end up punishing innocent employees 
and the wider economy more than it does the people with actual aggression over how these companies 
act. Last week, Senator Elizabeth Warren proposed a new law that would hold investment executives 
criminally liable if their cost-cutting measures in healthcare facilities cause death. If you 
can't put the companies in prison, at least you can put the people who own them in there. 
So now we are getting somewhere, right? Wrong. The new proposal was specifically targeted at buyout 
private equity funds who have done some serious

damage to the healthcare industry, an industry that was barely holding it together as it was. We have already made two videos about how private Equity squeezes out profits from some extreme cost-cutting measures and why the healthcare industry has been one of their biggest targets so far. According to the Wall Street Journal's private Equity division, Warren first made the proposal in a visit to St. Elizabeth's Medical Center in Boston. The hospital wasn't named after her; it was presumably another Elizabeth. The hospital was part of the Steward Healthcare System, which filed for bankruptcy in April following financial struggles that allegedly started with its previous private Equity owner, Cerberus Capital Management, an investment firm that specializes in acquiring healthcare businesses. Like most leverage buyouts, the hospital group was loaded up with debt to increase leverage, and it had to pay significant management fees to the private Equity company for their ivy league business advice, which was clearly so good that it led

them to complete insolvency to pay for these fees, and cover this interest. Significant cost cutting was needed to be made so that the hospitals could still look profitable to future investors, and that meant worse care for patients. According to a study conducted on over 4.5 million hospital patients run by healthcare publication the JAMA Network, the rate of hospital-acquired conditions like fall injuries, infections, and pharmaceutical side effects were more than 25% higher in private equity-controlled hospitals, primarily because they had fewer staff to give patients adequate care. So, the proposal to hold these investors liable when the stripped-back care causes severe injury or death would be a great way to control this trend, but unfortunately, it would be next to impossible to properly legislate. People go to hospitals when they are sick, and differentiating between a death caused by natural causes, a death caused by malpractice, and a death caused by the systematic cost-cutting of healthcare facilities is extremely difficult, to say the least. Private equity buyout

funds are an easy punching bag to score some easy political points in an election year. People have become more aware of the industry, and the more they learn about it, the less they like it. But as much of these kinds of laws are overdue, especially in vital industries like healthcare, they would be almost impossible to legislate. The line between getting the people truly doing harm for undue personal enrichment and putting someone in prison for investing in a healthcare business is very blurry, and I can tell you from experience that private equity is very savvy when it comes to political lobbying. In the run-up to the last presidential election, Warren herself unveiled a similar plan, which is still available on her website, which would reform the private equity industry and level the playing field by forcing private equity firms to take responsibility for the outcomes of companies they take over. If it sounds familiar, it's because it's pretty much the exact same proposal, so you shouldn't be surprised if this proposal is quietly

forgotten about after the next election. It's 
easy to criticize. It's hard to fix problems this   ingrained into our systems. So it's time to learn 
how money works to find out if legal punishments   for companies will ever be more than just the cost 
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Manscaped, the cathartic solution to companies   that are willfully negligent, criminally culpable, 
or just piling greed at the expense of human life.   Would be to shut them down so they can no 
longer pose a danger to society. But even   though companies enjoy most of the benefits of 
being a legal person like you or I, they don't get   many of the drawbacks like being thrown in prison 
if they break the law. Authorities can technically   shut down most companies if they wanted to by 
revoking licenses or charters, but that rarely

happens anymore, and that's because the rules of 
the game have been written in such a way that it   would almost always do more harm than good. This 
all began in 2002 with the collapse of Enron, the   second largest case of corporate fraud in history, 
after only the recent collapse of FTX. The story   is not actually about Enron itself; it's about 
the company that signed off on their books: the   accounting firm Arthur Andersen. According to the 
company's last filings, they employed 28,000 people   and had an annual revenue of $9.3 billion. This 
made them competitive with KPMG, Deloitte, EY, and PwC.   In the early 2000s, these weren't the Big Four; they 
were known as the Big Five, but Arthur Andersen was   put on trial for its involvement in the fraud 
and found guilty for obstruction of justice for   shredding documents related to the audit of Enron. 
The firm surrendered its licenses and closed down.

but a later appeal to the Supreme Court overturned 
the ruling because the jury instructions failed to   convey the requisite consciousness of wrongdoing 
in plain English. The prosecutors pushed too   hard to get a conviction, that they broke some 
rules, which overturned the conviction. This was a   national embarrassment to the prosecutors who were 
responsible for destroying a billion-dollar company   and major employer that didn't technically break 
any laws. Nobody wanted to repeat these mistakes,   which has led to a culture where companies just 
get handed a fine and everybody quietly moves on,   pretending they made a difference. Duke University 
School of Law Professor Brando Garrett coined the   term too Big to Jail in his 2014 book of the 
same name, where he highlighted the case of   Arthur Anderson as the last time authorities 
were willing to actually punish companies in   a way that couldn't just be brushed off as the 
cost of doing business. Garrett noted that the   number of fines issued to corporations has been 
increasing at an exponential rate, but the number

of convictions that would actually shut down 
companies has declined over the same time because   prosecutors didn't want another Arthur Anderson 
situation. No lawmaker wants to be responsible   for shutting down a bank or hospital that provides 
jobs to thousands of people and essential services   to millions, so they hand down a fine and quietly 
move on with it. It's the politically safe option,   even though a look at the numbers will say it 
shouldn't be. Corporate crimes are often simply   more harmful than individual crimes. According to 
a study conducted by the Economic Policy Institute,   wage theft amongst just low-income workers was 
more than $50 billion a year, and this was back in   2014 before the widespread adoption of gig work. 
That is far more than the collective total of all   burglaries, robberies, and motor vehicle thefts in 
the same year combined, according to the National   Bureau of Economic Research. Investment firms have 
been responsible for 20,000 premature deaths over

the past 12 years. In just the age care industry alone, the problem that Garrett points out in his book is that even tough on crime prosecutors take a very light touch when going after corporations for four reasons. And the potential impact on jobs and services is just the first reason. The second is because laws are much harder to pin on an entity that can blame its actions on suppliers, Rogue employees, market conditions, past Executives, or just their good old-fashioned mandate to maximize value for their shareholders. Companies can also afford much better lawyers than the average criminal, which makes shifting blame and striking up agreements a lot easier. The third reason prosecutors don't go after criminal corporations as hard as regular criminals is because even though companies claim to be a legal person, they aren't really. The imagery of throwing handcuffs on a scary-looking person accused of a Grizzly crime is a lot easier to sell when it's an actual person. Finally, of course, there is a revolving door between corporations and

authorities. A regular Flesh and Blood criminal isn't going to be Hing out jobs to talented legal prosecutors, but big companies might be, so there is a logical incentive for both sides to play along with counting a fine as a reasonable punishment. So what is the solution then? Companies could always just be given bigger fines if they actually impact profit for shareholders. Then boards will put more pressure on management to avoid, you know, committing crimes. But it can be hard to size these fines correctly. Too much and it could just bankrupt the company, which authorities don't want to do. And if it's not enough, then it just becomes the cost of doing business all over again. In 2019, Facebook was fined $5 billion for privacy violations by the FDC, and after the announcement, the company's stock went up because investors saw it as a sign that nothing was really going to change with the business. Another book, also called Too Big to Jail, was written in 2022 by

investigative business journalist Chris Blackhurst.
As an aside, if you want to sign that this is a real problem, there are two different books talking about inadequate corporate punishment. Blackhurst's book chronicled the crimes of HSBC, but it highlighted just how apprehensive lawmakers were to put what was clearly a criminal organization out of business. But that may be a solution, officially at least. The reason we send people to prison is to keep them away from society while they're being reformed. That doesn't always happen, clearly, but that's the theory anyway. We can't put corporations in prison, fines don't work, and there isn't the political will to shut down employers. But we can give them parole officers, forcing companies charged with illegal acts to accept a representative onto their board of directors to oversee decision-making. Both help companies reform their governance and act as a real deterrence to decision-makers tossing up the cost-benefit.

trade-off of criminal activity. A man on the inside 
also makes it much harder to commit new crimes and   harder to cover up existing wrongdoings. While 
the company reforms itself too, there isn't a   right answer, but treating criminal penalties 
as just another expense line in the income   statement is the wrong answer. Now go sign up to my 
newsletter for free stories that won't ever make   it onto YouTube, and if you want to learn about 
a company that makes HSBC look like a Boy Scout,   go and watch my video on the corporate history 
of Samsung to keep on learning how money works.

How Fines Became "The Cost of Doing Business"

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HSBC는 범죄 카르텔을 방조하고 제재를 위반한 혐의로 기소되었지만 기업이라는 지위 때문에 최소한의 처벌만 받았습니다.

이 사건은 기업의 법적 책임과 개인과 기업 간의 결과의 불균형에 대한 의문을 제기합니다.

엘리자베스 워런 상원의원이 발의한 법안은 투자 경영진의 유해한 비용 절감 조치에 대한 책임을 묻는 것을 목표로 하며, 기업의 책임에 대한 지속적인 논의를 강조하고 있습니다.

사모펀드가 의료 산업에 미치는 영향

사모펀드는 의료 산업에서 비용 절감 조치를 통해 이익을 얻고 있으며, 이는 환자 치료의 질 저하로 이어지고 있습니다.

의료 서비스 감소로 인한 피해에 대해 투자자에게 책임을 묻자는 제안은 자연적인 원인, 의료 과실, 비용 절감 효과를 구분하기 어렵기 때문에 입법 과정에서 난관에 직면해 있습니다.

의료 분야에서 사모펀드의 부정적인 영향에 대한 인식이 높아지고 있으며, 개혁에 대한 요구가 있지만 사모펀드의 참여를 규제하는 것은 여전히 어려운 과제입니다.

기업 범죄가 기업에 미치는 영향과 법적 처벌

기업은 종종 잘못에 대한 심각한 법적 처벌을 피하고 과실이나 탐욕에 대한 최소한의 처벌을 받습니다.

빅 5 회계법인 중 하나인 아서 앤더슨의 경우 엔론 사기사건에서 사법 방해 혐의로 유죄 판결을 받고 결국 문을 닫은 선례가 있습니다.

현재의 법적 체계와 규칙은 기업의 책임을 묻기 어렵게 만들어 범죄 행위에 대한 중대한 영향을 피할 수 있게 합니다.

검찰 전략이 기업 책임에 미치는 영향

대법원은 불명확한 배심원 지침으로 인해 판결을 뒤집었고, 이로 인해 기업 범죄에 대해 단순히 벌금을 부과하는 문화가 생겨났습니다.

'너무 커서 감옥에 갈 수 없다'는 개념은 기업 범죄에 대한 벌금이 증가하고 있음에도 불구하고 기업 처벌을 꺼리는 것을 강조합니다.

임금 절도와 같은 기업 범죄는 개인 범죄보다 재정적으로 더 큰 피해를 입히는 것으로 밝혀져 현재 검찰 전략의 실효성에 대한 의문이 제기되고 있습니다.

검찰은 기업 범죄가 일자리에 미치는 영향과 책임을 전가할 수 있는 능력으로 인해 기업 범죄에 대해 가볍게 접근합니다.

기업의 법적 이점과 기업과 당국 간의 순환 문은 검찰의 노력을 더욱 약화시킵니다.

주주 이익에 영향을 미치는 더 큰 벌금은 잠재적으로 기업 범죄를 억제할 수 있지만, 적절한 벌금 규모를 결정하는 데 어려움이 있습니다.

기업 처벌이 비즈니스 행동에 미치는 영향

크리스 블랙허스트는 범죄 기업에 대한 부적절한 처벌에 대한 해결책으로 가석방 담당관을 임명하여 의사 결정을 감독할 것을 제안합니다.

이 접근 방식은 거버넌스를 개혁하고 불법 활동을 억제하며 위법 행위 은폐를 방지하는 것을 목표로 합니다.

블랙허스트는 형사 처벌을 단순한 기업의 재정적 비용 이상으로 취급해야 한다고 강조합니다.