CONCLUSION
Disputes relating to corporate governance and securities regulation aresingularly bad subject matter for criminal sanctions. The issues of corporationlaw come in many forms ranging from self-dealing, to corporate opportunity, toexecutive compensation,to simple mismanagement. And as for federal securitiesregulation, the question is almost always one of where the gain and loss shouldfall. Either way, the issue is ultimately one of distribution. The civil lawdoes not presume any answers other than to allocate the burden of proof to oneparty or the other depending on the nature of the allegations. In contrast, thecriminal law is one dimensional. Although the defendant is supposedly presumedinnocent, the issue for the court in a criminal case is a simple factual one:Did the defendant do the crime? Although there may be some cases of outrightfraud in which the perpetrator has made no good faith effort to run aprofitable business, most cases of business failure are otherwise. Adiversified stockholder is perfectly able (and indeed happy) to absorb theoccasional loss from the failure of a business if management tries in goodfaith to maximize stockholder value. As long as management does not have itshand in the cookie jar, gains will more than compensate for losses. The threatof criminal prosecution will likely cause better managers to be moreconservative than stockholders want, and to seek more pay, or to go to work forprivately held companies. Either way, investors lose. So if the issue isstockholder welfare, we should rein in the prosecutors somehow. If the issue issomething else, somebody should say what it is.
机器翻译谁都会啊