Corporate Criminal Liability: Model Penal Code Section 2.07 and the Development in Western Legal Systems

Abstract

For a long time, criminal law and criminal procedure in continental Europe and the United States seemed to be irreconcilable. But in recent years, a significant convergence has occurred that has narrowed the gap between both systems. It involves not only marginal areas but also essential questions concerning criminal procedure and criminal law. For instance, conflict settlement by means of plea-bargaining is permanently embodied in the procedural law in the United States; in Germany, it has become common practice as well—but in the “shadow of the law.” That situation continues to prevail despite the German Federal Supreme Court’s (BGH) recent attempt to establish guidelines and limits regarding permissible deals. Firstly, plea-bargaining appears to be an essential contradiction to the objective of substantive truth that characterizes the German Criminal Procedural Code (StPO). Therefore, only the legislature could pass binding guidelines. Secondly, the practice regularly ignores the guidelines set out by the Federal Court, and therefore, the guidelines are at risk of becoming a mere farce. In the field of substantive law, the criminal liability of corporations is an interesting example of the current development. Schunemann characterizes that phenomenon as follows: