Research Handbooks in Financial Law series
Edited by Barry Rider
Chapter 16: Corporate criminal responsibility: a South African perspective
The origin of the corporation can be traced back to Roman law, and over the years various theoretical approaches have evolved to give the corporation context within the law for the purpose of regulation. The full extent of the implications of the separation of the corporate personality – be it fictitiousor realistic – from that of its individual members’ personalities was demonstrated in the case of Salomon v A Salomon & Co Ltd, where it was concluded that a company is, for all intents and purposes, altogether a different person from its shareholders. Essentially, a corporation is an artificial person in that it is invisible, intangible, existing only in contemplation of law and at common law possessing only those properties which the charter of its creation confers upon it, either expressly or incidental to its existence. In practice the corporation thus primarily operates as a legal device that serves to simplify and stabilize the complicated web of contractual relationships that an association of shareholders has to have with a multitude of outside parties in order to participate in society. Yet, given the artificiality of its nature, a corporation needs organization in order to make use of its own assets in society: a corporation is a legal construct incapable of performing any acts except through the acts of flesh and blood human beings. The increasingly active role that corporations assume in all aspects of modern life is accompanied by their correspondingly increased participation in criminal activities.
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