Criminal Liability Of Legal Persons Research Articles

Socio-legal basis of criminal liability of legal persons and corporate compliance to prevent crimes: Anthropic approach and behavioral game theory

Systems theory has garnered significant criticism from internationally recognized experts in the field of organizational analysis. However, a sector of criminal doctrine is adopting a strict approach to this theory to justify socio-legally the application of corporate criminal liability (this is a trend that has been embraced by the Spanish Supreme Court and is spreading throughout Latin America). The systemic idea of organization excludes the individuals who constitute and manage the company, dehumanizing it, separating corporate governance from the role played by individuals and even attributing human attributes to the company. In other words, the members that make up the organization, as well as the influences or constraints they generate in the context of the interaction of individuals within a corporation, are disregarded in the analysis. As an alternative, this text proposes the essential outlines of an "anthropic model" of corporate criminal liability, which is built on theoretically and experimentally validated notions and methodologies: neo-institutionalism, game theory and behavioral compliance. In this anthropic model, the adoption and implementation of an effective and adequate governance system to prevent irregularities (or crimes) does not depend on the system itself, but depends directly on the commitment and implementation of the "human component" of the organization. La teoría de sistemas ha recibido críticas significativas por parte de expertos internacionalmente reconocidos en el campo del análisis de las organizaciones. Sin embargo, cierto sector de la doctrina penal está adoptando un enfoque estricto de esta teoría para justificar sociojurídicamente la aplicación de la responsabilidad penal de las empresas (una tendencia que ha sido aceptada por el Tribunal Supremo español y se está extendiendo por América Latina). La idea sistémica de la organización excluye del análisis a los individuos que constituyen y gestionan la empresa, deshumanizándola, separando la gobernanza corporativa del papel desempeñado por los individuos e incluso atribuyendo atributos humanos a la empresa. En otras palabras, se desestiman en el análisis penal tanto a los miembros que conforman la organización como a las influencias o constricciones que originan en ese contexto de interacción de individuos que configura la corporación. Como alternativa, se proponen los lineamientos esenciales de un “modelo antrópico” de responsabilidad penal corporativa, construido sobre nociones y metodologías teórica y experimentalmente validadas: neoinstitucionalismo, teoría de juegos y “behavioral compliance”. En este modelo antrópico, la adopción e implementación de un sistema de gobernanza efectivo y adecuado para prevenir irregularidades (o delitos) no depende del sistema en sí, sino que pende directamente del compromiso e implementación efectiva por parte del “componente humano” de la organización.

CRIMINAL LIABILITY OF SELF-DRIVING VEHICLES UNDER HUNGARIAN CRIMINAL LAW

As self-driving evolves day by day, the accidents attributed to such technology will increase as well. If the legal environment does not prepare for these cases, the ‘liabilityvacuum’ caused by the diverging court practices could lead to the rejection of the self-driving vehicles both by the consumers and the legislators. I am approaching the various questions posed by this technology from a continental standpoint, therefore the research examines the liability of the natural persons behind the technology. If we can provide possible answers to these issues, then the criminal liability of legal persons – an unfamiliar concept from the standpoint of the majority of the continental criminal law regimes – does not have to be applied to answer the central questions. If the national rules can determine the obligations of the natural persons travelling in a self-driving vehicle, their criminal liability can be decided accordingly and there is no need to create new offences.

The prosecution of fisheries crime in Spanish criminal law: The impact of European Union regulations

This contribution offers a critical reflection on fisheries crime as described in the Spanish Penal Code. It sets out the reasons why its treatment is considered ineffective, and why the administrative offences and sanctions provided for in Law 3/2001 on Maritime Fisheries are more effective and dissuasive. However, it also considers that a legislative policy relying on the severity of administrative sanctions for its effectiveness may be counterproductive. The most recent judgements of the ECtHR consider that a disproportionate administrative sanction is equivalent to a penalty and should therefore be imposed with the same procedural and substantive safeguards. Finally, it is concluded that in order to avoid impunity for serious crimes in the field of IUU fishing activities, often managed by transnational and organised criminal networks with links to other criminal activities, the contribution of criminal jurisdiction is essential. Therefore, a reform of the Spanish Criminal Code is required, extending the conducts punishable as fishing crimes, increasing the penalties and establishing the criminal liability of legal persons.

Legislative omission of the illegal practice of financial activity as an offence

The classification of a prejudicial act/harmful event pursuant to Article 2411 (Unlawful practice of financial activity) of the Moldovan Criminal Code involves determining the offence objective and subjective constituents. The subject of the offence is the main player, without whom there can be neither crime nor criminal liability. The Parliament has recognised natural and legal persons as subjects of offence. However, the legal person is held liable for the committed offence only when the Special Part of the Criminal Code comprises appropriate sanctions. In case of the offence covered by Article 2411 of the Criminal Code, the Legislature has not recognised the legal person as a subject of crime. This Article shall deal with the unlawful practice of financial activity and the possibility of its commission by a legal person. Likewise, the Article aims to justify the need to regulate the criminal liability of legal persons along with the criminal liability of natural persons holding management positions pursuant to Article 21 (3) of the Criminal Code. For the offence subject to research, the legal person shall be referred to criminal justice.

Self-Regulation of Ethical Behavior: The Case of Political Parties and Parliament in Spain

Spanish politicians have attempted to respond to the growing concern about declining trust in representative institutions through ethical self-regulation and meta-regulation instruments. This article focuses on a study of Parliament and the six major political parties with parliamentary representation. It attempts to explain the reasons for adopting these new regulations and proceeds with an in-depth analysis of the existing rules, oversight, and enforcement methods in Parliament and within party organizations. As a result of European pressure, Spanish Parliament has developed a new code of ethics, but it has not strengthened internal procedures and mechanisms to bring them into compliance with the standing rules. Furthermore, political parties have developed an entire set of basic compliance measures influenced by the law on the criminal liability of legal persons. In both cases, oversight and enforcement are exceedingly weak. None of these measures has improved confidence in politicians in Spain. Two lessons can be learned. First is that without politicians’ commitment, ethical reforms do not work. Secondly, today’s new technologies, linked to a social network society, make window-dressing deception more difficult.

Role of Judiciary in Developing the Concept of Corporate Crime

The concept of corporate crime has grown rapidly the last thirty years, with an increasing number of corporations participating in economic and public life. Particularly came to the notion that corporations within their core business can act against the law, causing damage to the country, but also to society as a whole. Having in mind the essence of corporate operations and management (the pursuit of making profit), and the scope of their activity, we can assume how much damage it inflicts illegal activities. In addition corporate crime now dominates pronounced international character, given the growing presence of multinational corporations, which further aggravated criminal reaction to this form of negative social effects. In addition, in today's age of global capitalism, advanced technology development, including the development of e-commerce (e-commerce), we can expect further growth of corporate crime. Also corporate crime shows strong correlation with other types of crime, especially white-collar crime, economic crime and organized crime. There is often a lack of differentiation of these criminal phenomena, which affect the study of corporate crime. Although by doing some of their activities the corporation performs specific criminal offenses, criminal liability of legal persons for a long time has no provisions for that under national law, especially the European countries from which Corporation is coming. Therefore, many countries have joined the facelift for the criminal law, and to provide accountability and punishment of legal persons for criminal offenses (either directly, or indirectly to). Bearing in mind the European directive and other international standards, it is expected that this issue will be aligned in the European countries in a way that will make the offenses responsible corporation, which will cause the development of corporate criminal law.

Aspectos procesales del criminal compliance

The introduction of criminal liability of legal persons in the Criminal Code, coupled with the creation of exempt and mitigating circumstances for companies that effectively establish a criminal compliance has generated important consequences for substantive criminal law, as well as for criminal procedural law. Its main characteristics are studied.

Criminal Sanctions for Legal Entities in the Law of the Republic of Serbia

In 2008, the Republic of Serbia adopted a special Law on Liability of Legal Persons for Criminal Offenses. In doing so, on the basis of the international standards contained in the relevant international documents, it joined a large number of countries that introduced criminal liability of legal persons for crimes committed in addition to their responsible persons at the end of the 20th century. For legal persons, the law prescribed a disparate system of criminal sanctions in response to the state-society’s response to such unlawful and punishable conduct. The system of criminal sanctions in the law of the Republic of Serbia includes: penalties, probation and security measures. The law defined the concept, character, legal nature, manner, procedure, pronouncement and execution of criminal sanctions, whose characteristics this particular work speaks of.

Money Laundering, Cybercrime and Criminal Responsibility of Legal Persons

Directives 2015/849 and 2018/843 on money laundering require continuous adaptations of the legal framework to respond to threats of the use of new technologies in money laundering. Directive 2018/843 extends the scope of Directive 2015/849 to ‘providers engaged in exchange services between virtual currencies and fiat currencies, as well as custodian wallet providers’. Undoubtedly, the new payment systems facilitate money launderers’ criminal activity. These systems are better than cash for moving large sums of money, non-face to face business relationships favour the use of straw buyers and false identities, the absence of credit risk, as there is usually a prepaid option, discourages service providers from obtaining complete and accurate customer information, and the nature of the trade and the speed of transactions make it difficult to control property or freezing. However, the development of technologies, including the Internet, has unquestionable advantages involved and even provides, through online resources, verification of identity or other duty of surveillance for the prevention of money laundering. In addition, the reform of June 22, 2010 introduced in Spain the criminal liability of legal persons and incorporated money laundering, together with other crimes, to this innovative model of criminal responsibility. Soon after, Organic Law 1/2015, of March 30, modified the hitherto barely applied regulation. In conclusion, the use of dummy corporations for money laundering is frequent, as is evidenced by the judgements of the Supreme Court of June 26, 2012 and February 4, 2015, but until recently the accessory consequences and the doctrine of piercing the corporate veil were sufficient.

The Criminal Liability of the Compliance Officer: An Approach Through Several Hard Cases

There is broad consensus in the academic legal opinion that traditional theories on perpetration and participation are insufficient to determine criminal liability in complex organisational structures, in particular in the business sector. Corporate activity rarely takes place through the implementation of naturalistic actions; it is more often a matter of adopting agreements reached by management bodies. Consequently, when determining perpetration, the decisive element is displaced from actual commission to the taking of strategic decisions, or even failure to avoid the criminal conduct committed by a third party. In this context, it is hardly surprising that particular relevance falls upon the attribution of liability for commission by omission. This would also be motivated by reasons of a practical nature: without evidence of actual commission of the offence, it would doubtlessly be easier to attest that the crime committed by someone lower down in the hierarchy had taken place in the sphere of competence of a hierarchical superior (administrator or senior manager) who, though able to prevent it, failed to do so. Based on this twofold premise, this paper sets out to reflect upon one of the new corporate subjects arising out of the reforms introduced by Organic Laws 5/2010 and 1/2015 in the field of criminal liability of legal persons and crime prevention models (corporate criminal compliance): the compliance officer.

Răspunderea persoanei juridice pentru infracțiuni contra patrimoniului

The paper presents the statistical data in the field of criminal liability of legal persons for offences against property. The analysis of these data shows that, althought many legal persons are investigated for such criminal offences, the percetange of the ones sent in front of the court is actually low. The majority of the legal persons who are being judged perpetrated a type of fraud, but other criminal offences are also encountered.

Money laundering, cybercrime and criminal responsibility of legal persons

Directives 2015/849, and 2018/843 on Money Laundering require continuous adaptations of the legal framework to respond to threats of the use of new technologies in money laundering. Directive 2018/843 extends the scope of Directive 2015/849 to providers engaged in exchange services between virtual currencies and fiat currencies as well as custodian wallet providers. Undoubtedly, the new payment systems facilitate money launderers’ criminal activity. These systems are better than cash for moving large sums of money, non-face to face business relationships favour the use of straw buyers, and false identities, the absence of credit risk, as there is usually a prepaid payment, discourages service providers from obtaining a complete, and accurate customer information, and the nature of the trade, and the speed of transactions make it difficult to control property or freezing. However, the development of technologies, including the internet, has unquestionable advantages involved and even provides, through online resources, verification of identity, or other duty of surveillance, for the prevention of money laundering. In addition, the reform of June 22, 2010 introduced in Spain the criminal liability of legal persons, and incorporated money laundering together with other crimes to this innovative model of criminal responsibility. Soon after, Organic Law 1/2015, of March 30, modified the hereto barely applied regulation. Itis quite surprising that Organic Law 1/2015 boasts of making a technical improvement, as it incurs obvious contradictions by exempting criminal liability to legal persons for a money laundering, that should not have existed due to the adoptionand effective execution of suitable or adequate compliance programs to prevent it, as well as taking into account to limit the punishment non-serious breaches of supervisory, monitoring, and control duties, when letter b) of the first paragraph of article 31 bis only takes into consideration serious breaches of those duties. Already in 2010, in order to introduce the criminal liability of legal persons, the Spanish Legislator invoked the alleged need to comply with international commitments. However, this model of responsibility was not mandatory, because international agreements normally only require effective, proportionate, and dissuasive sanctions. In addition, managers and executives, who have not adopted an effective compliance program, will be held liable together with the company, given that now all act as police officers. In conclusion, the use of dummy corporations for money laundering is frequent, as it is evidenced by the judgments of theSupreme Court of June 26, 2012, and February 4, 2015, but until recently, the accessory consequences and the doctrine of piercing the corporate veil were sufficient.

Models of Criminal Liability of Artificial Intelligence: From Science Fiction to Prospect for Criminal Law and Policy in Vietnam

The Industrial Revolution 4.0 (4IR) reflects combination of technologies in physics, digitalisation and biology, shaping a modern world of information technology where virtual and real systems are integrated through worldwide internet connection networks. Artifical Intelligence (AI) and decision making process have seen profound changes. The relevant question is whether criminal liability is applicable to AI entities in the near future given criminal law in many jurisdictions including Vietnam has provided for criminal liability of legal persons as “abstract entities”. On this basis, from the criminal law and science fiction approach, the paper initially assumes AI entities as subjects of crimes to explore possible models of criminal liability applicable to AI entities and prospect for changes of criminal law and policy in Vietnam in the future, making recommendations on improvement of legal framework, contributing to crime prevention and protection of human rights in the industrial revolution 4.0.

Protection of the Rights and Legitimate Interests of Legal Persons in Criminal Proceedings: a Correlation of Criminal Law, Criminal Procedure and Forensic Aspects

The transformation of the status and role of legal persons in modern civil society as one of the consequences of global social and economic reforms of the post-Soviet period brought about a need for strengthening the guarantees of protecting the rights and legitimate interests of legal persons. The guarantees of protecting legal persons against criminal infringements are very important in this case. The lawmakers have done an enormous amount of work in this sphere: the norms of the Special Part of the Criminal Code of the Russian Federation contain a considerate number of crimes whose characteristic features are infringements on the rights and legitimate interests of legal persons, while the norms of the Criminal Procedure Code of the Russian Federation make it possible to recognize not only a physical, but also a legal person as a victim. The authors describe some criminalistically relevant features of subjects who are likely to commit crimes against the property or business reputation of legal persons, depending, among other things, on the existence or absence of official legal relations (civil law, labor) between legal persons and the subjects of crime. As for the extensive scientific discussion on the introduction of the institute of criminal liability of legal persons into Russian criminal legislation, the authors side with the opponents (at least, at the present stage) of such an innovation. At the same time, they stress that it is absolutely necessary to look for the ways to improve the effectiveness of counteracting criminal infringements against legal persons. The authors believe that an effective way to resolve this problem could be the development of a complex methodology of investigating crimes against legal persons. The theoretical and methodological basis of this scientific sphere, its main ideas (its concept) make it possible to identify and systematize general regularities of the mechanism of criminal actions in this sphere; a good understanding of these regularities will help develop a complex of methodical and criminalistic recommendations that meet the requirements of the legal science and the investigation and court practice.

Environmental Liability in Ukraine and the EU

This scholarly work examines the environmental protection legislation of Ukraine and its application in practice, aiming to identify the main challenges it faces in the context of the required harmonization of Ukrainian environmental legislation with EU law according to the Association Agreement, while also making suggestions on how to better respond to these issues. This paper also refers to the experience of EU member states in the field of environmental liability. Legal nature, content and meaning of the criminal liability of legal persons in the environmental sphere according to the law of EU member states were studied in order to determine the appropriateness and mechanism of implementation of such responsibility in Ukraine. Arguments for establishment of criminal liability of legal persons were presented. Keywords: Environmental policy, environmental crime, environmental responsibility, adaptation of Ukrainian environmental legislation to EU standards.

Legal person as a subject of criminal offence in the Republika Srpska

Although a legal person was out of the criminal law in accordance with the principle of "societas delinquere non potest" since ancient times, the tendencies in recent decades of the 20th century introduced qualitative changes into this field. Under the influence of a number of relevant international documents of universal and regional character, specific criminal legislation of the seventies of the last century accept criminal liability and punishment of legal persons, albeit of limited scope and specific character. This tendency was followed by all the criminal legislations of the states that were formed by the breakdown of the Socialist Federal Republic of Yugoslavia. There are two different tendencies: (1) the ones that separate special provisions on the liability of a legal person for criminal offences in the context of criminal legislation (Bosnia and Herzegovina, Macedonia) and (2) the ones that provide for provisions on criminal liability of legal persons in a special law - lex specialis (Slovenia, Croatia, Montenegro, Serbia). Thus, a new branch of criminal law - commercial criminal law has been constituted which turned a new page in the development of criminal law of Bosnia and Herzegovina.

Коллективная уголовная ответственность в Республике Польша

The article explores collective criminal liability in the Republic of Poland. The analysis of the relevant provisions of Polish law is preceded by a summary of the approaches to the understanding of collective criminal liability abroad, determining the interrelation of the notions of collective criminal liability and corporate criminal liability, defining the content of criminal liability of legal persons in the narrow and broad sense. The paper considers the substantive provisions of the Republic of Poland’s legislation regulating collective criminal liability (criminal liability of legal entities in a broad sense), as well as views of the Polish criminal law doctrine on the nature of such liability and prospects of improving its legal regulation.

Naudinga Lietuvos baudžiamojo teisinio reguliavimo patirtis ir galimybė ją pritaikyti Rusijos baudžiamuosiuose įstatymuose

The article analyses some statements of the Criminal Law of the Republic of Lithuania which could be used to create the Russian Federation Criminal Law. Partly, to such statements can be attributed criminal offence, criminal liability of legal persons and others.

К вопросу о возможности введения в России уголовной ответственности и уголовных наказаний юридических лиц (сравнительный аспект)

The article is devoted to a problem that causes a lot of controversy in a Russian scientific community at present: the possibility and expediency of introducing in Russia the institute of criminal liability of legal persons. The author underlines the problems of this issue. The main arguments of both supporters and opponents of criminal liability of legal persons are presented. Among the main arguments against – the question of personal guilt, which is a major problem and an obstacle to the introduction of this institute, the possibility of tightening the liability of legal persons in other branches of law, etc. Among the main supporting arguments of legal entities’ the criminal liability, referred to in this article, there are international obligations of the Russian Federation, greater efficiency of criminal sanctions, criminal record of legal persons, judicial optimization and others. Attention is also paid to the fact that since 2002 in the Russian Federation there has already existed administrative liability of legal persons, which was one of the major novelties of the Administrative Code, 2002. Russian administrative scholars have formulated the theoretical and practical bases of administrative liability of legal persons that can be used and the introduction of criminal liability of legal persons. In addition, attention is paid to the current debate in Russia on the possible introduction of the category of criminal offence and the possible merging of criminal liability and administrative liability in one single form of legal liability. In this connection it may be interesting to refer to the French experience, where are three categories of offences: crime, délit and contravention.
 At the end of the article the author points out the objective difficulties of the possible introduction into the domestic legal system the institute of legal persons’ criminal liability, which is caused by a number of reasons, first of all by the established principles of domestic criminal law doctrine.

Ответственность юридических лиц в корпоративном праве: проблемы и перспективы

The article deals with the issues associated with the withdrawal from responsibility by founders of a legal entity. To solve this problem a legislator uses not only private but also public legal measures. The author explores the specific features of the emergence and perspectives of using the doctrine of lifting the corporate veil as an effective means of countering the abuse of law. The two main approaches to the application of the doctrine of lifting the corporate veil in foreign countries are investigated. If in Common law countries a compulsory condition for bringing a corporation member to responsibility is the fact of abuse of the right, in Civil law countries the major approach is the presumption of responsibility of the parent company for the obligations of the subsidiary. Based on the analysis of Russian jurisprudence and legislation the author concludes that the doctrine under consideration is not widespread in Russia which is why there is a need to improve Russian legislation on the liability of legal persons in corporate law. It is noted that there are issues which creditors face in the reorganization and bankruptcy of legal entities, as well as the liability of legal entities for violation of legislation that leads to forced reorganization. An interesting feature of French law is that the rules on criminal liability for corporate violations are contained not in the Criminal Code but in the Commercial Code. Comparative analysis of judicial practice, doctrines and various provisions of Russian and French legislations allows us to conclude that the discussion of the prospect of criminal liability of legal persons in Russian corporate law requires an integrated approach. It is proposed to conduct comparative studies of the experience of foreign countries in which criminal liability of legal entities for violations of corporate legislation has already been introduced. From this point of view, the French experience is particularly interesting.