Criminal Liability Of Legal Persons Research Articles

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.

Ответственность юридических лиц за нарушение правил конкуренции: уголовное преследование и альтернативные способы урегулирования конфликтов (сравнительный аспект)

In the article there is an analysis of criminal and criminal prosecution mechanism of legal persons’ liability for the violation of competition rules in some post-Soviet countries (Azerbaijan, Georgia, Kyrgyzstan, Moldova, Estonia).
 With a glance to a comparative evaluation there are features of national approaches established to regulate criminal law and criminal procedural measures applicable to legal persons who have committed acts in the field contrary to honest practices in industrial or commercial matters covered by the criminal branch of law.
 Based on the latest trends in criminalization, the model of criminal liability of legal persons is identified that is known in the world’s practice. Among them there are marked identified model (on the example of Estonia and Kyrgyzstan) and extended identified (based on the legislative approaches of Azerbaijan, Georgia, Moldova) models of corporate criminal liability.
 There are accumulated findings about the specifics of criminal prosecution of legal persons who have committed socially dangerous acts in the sphere of competition, and the possibility of using alternative mechanisms for the settlement of criminal law disputes in the stage of criminal prosecution.
 The conclusion defined is about direct dependence of realization of alternative dispute resolution mechanisms on the approach of the legislator to the legal entity of the Institute of responsibility of legal persons in criminal law.

Liability of legal persons for the creation of criminal associations and participation in them by the legislation of Ukraine and other countries

The article presents a comparative analysis of the liability of legal persons for the creation of criminal associations and participation in them under the laws of Ukraine and other countries. It was established that today we have a de facto mechanism for liability of legal persons in the case of certain crimes which are not de jure criminal liability. It is to some extent helps to prevent crimes committed in the interests of legal entities and has the potential to become an integral element of damages caused by the crime. Proposed extend in CC Ukraine grounds application to the legal entities measures of criminal law cases by crime under Art. 255 and 257 of the Criminal Code of Ukraine. In this regard, p. 4 h. 1 art. 96-3 CC Ukraine offer after words "Article 160," to supplement the numbers "255, 257".Proven in expedience to limit quasi criminal liability of legal persons committing the crime for the benefit of a legal person, if it led obtaining unlawful benefit or created the conditions for such benefits or purported to avoidance the statutory responsibilities inappropriate to because in the interests of legal entities can be committed crimes involving not only unlawful profits, for example, to the physical destruction of victims. Definitely obtaining unlawful benefit the most common, but not the only purpose of committing crimes for the benefit of a legal person. Do not limit other possible options and avoidance the statutory responsibilities. In connection with this offer note 2 to the art. 963 Criminal Code of Ukraine after words.

Company Criminal Liability for Unlawful Attacks against Information Systems within the Scope of EU Law

Unlawful attacks against information systems are everyday reality for large international companies such as Apple or Facebook as well as for SMEs, national information systems and individuals who are more and more often objects of such attacks. This thesis carries out an analysis of the most important legal instruments primarily at the level of the European Union in the field of cybercrime committed by companies and other legal persons. It explores the history of regulation of cybercrime and it especially analysis crimes of illegal access to information systems and illegal system interference governed above all by the Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA. It also looks at corporate criminal liability in this field and at sanctions which can be applied on legal entities according to the EU and Czech regulation for committing unlawful attacks against information systems. At the same time this thesis concerns with the implementation of the Directive on attacks against information systems into the Czech legal framework, i.e. Act No. 40/2009 Coll., the Criminal Code, also it concerns with the regulation of criminal liability of legal persons by Czech Act No. 418/2011 Coll., on Criminal Liability of Legal Entities and their Prosecution, and it critically evaluates these legal instruments.

Mezinárodní závazky České republiky k zavedení trestní odpovědnosti právnických osob

This paper deals with the Czech Republicʼs commitments connected with the requirement to establish the criminal liability of legal persons, arising from international agreements and legislation of European Union. The author analyzes various international and European documents, and also evaluates the fulfillment of its obligations under these documents before and after the moment, when the Czech Republic adopted the law on criminal liability of legal persons and proceedings against them. Finally, chapter gives the summary of international documents and legal acts of the European Union, in which the requirement to establish the criminal liability of legal persons for signatory states or Member States is enshrined. The paper also reflects recent changes in Czech counter terrorism legislation and its concordance with the international obligations of the Czech Republic.

Koncepce trestní odpovědnosti právnických osob

The author reflects on the conception of corporate criminal liability in the Czech Republic under the Act no. 418/2011 Sb., on Corporate Criminal Liability and the proceedings against legal persons. Corporate criminal liability does not only complement the criminal liability of natural persons. It is regarded as a branch of criminal liability equal to the criminal liability of natural persons. The so-called principle of subsidiarity of criminal repression applies to the liability of natural persons as well as to the liability of corporations. The author considers corporate criminal liability as genuine liability for which the conditions of criminal liability and of punishment for corporate wrongdoings are stipulated by law. Sanctions are decided upon during criminal proceedings. Furthermore, the author refers to the corporate criminal liability under Czech criminal law as liability deriving from natural persons who act on behalf of legal persons. The liability of natural persons is regarded as parallel to and independent of the criminal liability of legal persons. Corporate criminal liability under Czech law is understood as subjective liability. The author justifies the special features of “fault” with respect to legal entities. In the end, the author examines the possibility of legal persons to “exculpate” from criminal liability under the § 8 (5) of the Act cited above. This provision was incorporated into the Act by the amendment no. 183/2016 Sb., which came into effect on 1st December 2016.

Criminal Responsibility of Legal Persons in Russia and Germany: To the Treatment of the Problem

This article discusses issues related to the introduction of criminal responsibility of legal entities in Russia and Germany. It is stressed that for Russia in 2015 the issue in question acquired its special relevance again in connection with the draft federal law "On amendments to some legislative acts of the Russian Federation in connection with the introduction of criminal responsibility of legal persons", # 750443-6. For Germany, this problem is especially important due to the fact that in 2013, Federal Land North Rhine-Westphalia was introduced to the draft law on the introduction of criminal liability of legal persons and other organizations. The article notes that the Russian Federation civil and administrative liability of legal persons corresponds with universally recognized norms and principles of international law and international treaties of the Russian Federation, on the one hand, and does not contradict Part 4 Art. 15 of the Constitution of the Russian Federation, on the other hand, makes it possible to identify the subject of criminal responsibility in accordance with the compliance with the peculiar Russian criminal law principles, teachings about crime and punishment, not destroy the current enforcement. In Germany, the responsibility of legal persons is of "quasi criminal" character. It is established on the basis of the public offence Act (Gesetz über Ordnungswidrigkeiten (OWiG)) of May 24, 1968 (as amended on February 19,1987), which is an important source of additional criminal law (strafrechtliche Nebengesetze). The article emphasizes that the legislator in both Russia and Germany elected criminal law, guilt-based, bound to a particular person. Legal entity does not have legal capacity as such, and therefore liability. Therefore, improving legislation would be sufficient to effectively combat crime. In conclusion the author justifies inexpediency of establishment of criminal responsibility of legal persons in the Russian Federation and Germany.

Criminal Liability of Legal Persons in Light of the Subsidiarity of Criminal Repression

Abstract This paper deals with the definition of (substantive) subsidiarity of criminal repression and the possibility of its application to the criminal liability of legal persons. After defining the liability of legal persons in the relevant legal regulations, the paper presents an interpretation of subsidiarity in Section 12(2) of the Criminal Code that is significantly different from the “official” opinion. Subsequently, the paper discusses certain criminal law situations in which the application of subsidiarity would lead to the conclusion that the legal person is not punishable (“non-criminality”). The first aim was thus to present the theoretical concept of subsidiarity of criminal repression, which would be methodologically correct, and therefore generally applicable. The second objective was directed at demonstrating that this construct can be applied to specific examples of the liability of legal persons, that is, that it can be applied to the activities of the bodies in charge of criminal proceedings.

Вплив глобалізації на кримінальне законодавство України

Мета: Метою даного дослідження є глобалізація, яка зачіпає всі верстви українського суспільства, науку, зокрема, науку кримінального права, законодавчий процес та практику регуляторної політики. Глобалізація в галузі кримінального права, на наш погляд, проявляється в процесі гармонізації законодавства, яке спрямоване на наближення і коригування нормативних правових приписів для досягнення міжнародних, європейських і національних правових норм. Узгодження допомагає в досягненні взаємної згоди для правових систем або їх структурних частин в межах певної спільноти. Методи: Основним методом уніфікації законодавства є систематизація норм національного законодавства, реалізація правових положень міжнародного права у внутрішньому законодавстві і його адаптація до міжнародних вимог. Слід особливо відзначити такі методологічні основи гармонізації як єдність, цілісність, пропорційність, узгодженість і сучасний досвід. Результати: Показано, що існує багато проблем щодо глобалізації саме в галузі кримінального законодавства. Особливу увагу приділено проблемі реалізації норм про кримінальну відповідальність юридичних осіб за вчинення корупційних правопорушень у вітчизняному законодавстві. Автор доходить висновку, що реалізація цієї ідеї є небажаною і недоцільною в сучасних умовах через принцип індивідуальної і винної відповідальності, який слід розглядати як важливе досягнення людської цивілізації. Обговорення: На нашу думку, ми повинні досліджувати конкретні правові системи окремих країн, а не англо-саксонську правову систему або романо-германську правову систему права в цілому. Крім того, поняття, яке використовується для позначення терміна «сім'я права» необхідно ретельно вивчити. Адже існують певні спільні характеристики деяких правових систем в різних країнах. В той же час ці характеристики можуть бути присутніми або можуть бути відсутніми у певній правовій системі кожної країни. Цій проблемі приділяється значна увага в роботах вітчизняних вчених в галузі кримінального права і порівняльного правознавства Ю. Бауліна, В. Грищука, В. Тихого, В. Тулякова і т.д. Але існують не вирішені проблеми, пов'язані з інститутом кримінальної відповідальності юридичних осіб, покараннями, інститутом інших заходів правового впливу, що мають зазнати значних змін під впливом процесу глобалізації.

Экономико-правовые аспекты юридической ответственности за нарушение правил конкуренции во Франции

The article deals with the economic and legal aspects of the legal liability for the violation of the competition rules in the doctrine and the French legislation. Particular attention is paid to the economic aspects of the legal regulation of competitive relations and the practical application of the techniques of economic analysis by the French courts in disputes related to economic supervision. The role of the Competition Council in making decisions about the presence or absence of positive economic impacts of the transaction is noted. The question of delimitation of antitrust regulation by the norms of the French Commercial Code and acts of unfair competition by the rules of the French Civil Code is researched. The formed approaches to the definition of acts of unfair competition in the doctrine are analyzed. The attention is paid to the possibility of criminal liability of legal persons for violation of the rules of competition in accordance with French law.

Criminal Responsibility of Individuals in Cyberspace Law of Iran

Cyber space or virtual environment is one of the concepts that have been recently considered by criminologists and lawyers. At the same time with the creation of this environment, there are some crimes taking place in it and using it and therefore, the legal fight against these crimes requires taking some significant steps. The first crime was criminal behavior. However, the criminalization without creation and proof of criminal liability is deemed to be almost pointless. Perhaps it was on this basis that the legislator of the law in Iran has emphasized on the criminal liability of legal entities regarding the cybercrimes and explicitly targeted the criminal liability of legal persons for the first time Iran. However, the issue of criminal responsibility and explaining the scope of computer crime law has been of great importance. Many questions may be raised about the extent of the responsibility of individuals in a virtual environment. Legislator of Iran has allocated the sixth season of the computer crimes law to the subject of criminal liability and the most important changes that have been made in the above-mentioned law is to identify and establish criminal liability for legal persons in the virtual environment. DOI: 10.5901/mjss.2016.v7n3s2p198

Генезис уголовно-процессуального законодательства об ответственности юридических лиц в России

The article deals with the legislative and doctrinal precondition of criminal liability of legal persons, which are accumulated a concept formed the basis of the judicial reform of 1864. The author studies the practice the first phase of the introduction in to the Russian criminal procedure enforcement of the measures applicable to legal persons for acts committed during preliminary investigation of crimes. In this context, the article lays emphasis on the norms of the Charter of criminal proceedings of 1864, which contain the procedural peculiarities of the application of such a measures to legal entities as closure, as well as monitors the judicial practice on the criminal liability of legal persons. The article gives a positive assessment of the approach of the legislator to the possibility of the implementation of remedial measures in criminal proceedings on such corruption crimes as crimes against property and income of the treasury. Given these positions, the author comes to the conclusion of the possibility of application of measures of criminal procedure liability of legal persons under preliminary investigation in criminal cases of crimes that infringe on budget forming industries.

La responsabilidad penal de las personas jurídicas: un estudio comparado entre España y el Perú

This paper studies the criminal liability of legal persons, which has suffered a deep reform with the organic law 1/2015, after being introduced in Spain in 2010. This reform has brought important modifications and news, as the creation of an exemption of liability through the adoption of compliance programs, which supposes a change in the so called model of transfer of liability, that existed before. Parallel to this transformation in the Spanish criminal code, in Peru recently the law 30424 has come into forth, which contents a corporate liability model, very similar to the one foreseen in Spain. Both models of liability and the possibility of its exemption raise doubts about if they really tried to penalize legal persons or not.

Criminal sanctions for legal enties: An instrument of crime control

Although contemporary criminal law accepts the system of subjective criminal liability for a committed crime, numerous European legal documents as well as criminal laws, especially those that have been adopted lately, envisage exceptions from this system. Thus, a new form of criminal liability is being introduced: objective liability based on the causation. One of the forms of objective liability is the criminal liability of legal entities, which has been considered disputable for a long time. Obviously, legal entities cannot be held accountable for all types of criminal offences. They cannot be held liable on the grounds of legal provisions regarding mental competence and culpability (as the elements of subjective criminal liability), nor can they be imposed all types of criminal sanctions recognized in criminal legislation in general. In their new or revised criminal legislation, many countries have recognized and inagurated the objective criminal liability of legal persons for committed criminal offences alongside with the predominant system of subjective liability (based on the perpetrator's mental competence and culpability). It is indisputable that some legal entities (such as state authorities) cannot be prosecuted and held liable in criminal proceedings; consequently, there are some exemptions from criminal liability (particularly when it comes to the state and state bodies), but it does not exclude criminal liability of responsible officials (natural persons) for causing the consequences of a criminal offence. Due to the specific character of legal and contractual capacity of legal entities, law in general and criminal legislations in particular prescribe special legal grounds for establishing criminal liability of legal entities, which differ from the subjective liability of a natural person (perceived as a conscious and reasonable human being acting on his/her own free will) where the consequence of a criminal offence is a result of one's own conduct embodied either in the commission of a criminal offence or in the omission to act. Therefore, contemporary criminal laws have determined special types of criminal sanctions, such as: punishment, security measures, conditional (suspended) sentence and confiscation of material gain obtained by comitting the criminal offence, as well as the instruments, proceedings and conditions under which they may be imposed. Within the framework of the forthcoming reform of the entire penal legislation in the Republic of Serbia, the Serbian legislator may use the legal solutions envisaged in the analyzed documents and criminal legislations as a solid model for implementing the international standards in the field of criminal liability of legal entities. Hence, this paper discusses the particularities governing the application of criminal sanctions for legal entities in the Republic of Serbia, particularly as an instrument of crime control.

LAWS AND REGULATIONS OF COMBATTING CORRUPTION IN THE MODERN CHINESE STATE

The article is devoted to the comprehensive study of the legal framework for combating corruption in China. The author considers the provisions of the existing acts of the law-making process in the field of study in question: China's Constitution, the Criminal Code of the PRC, the existing laws and regulations, departmental and party documents. The author makes a conclusion about a possible use of the Chinese government's experience in their combatting corruption, in particular restoring institutions of seizure of proerty and criminal liability of legal persons for corruption offenses in the criminal law of the Russian Federation. The unwillingness of Russian society to apply capital punishment for corruption (on the model of China), a serious increase of salary for public servants (on the model of Singapore). The downside of the Chinese experience is believed to be a comprehensive due process of official's activities regarding the costs undertaken by them, which leads to increased levels of bureaucracy in the system of public authorities. Much attention is paid to the study of the role of the ruling of the Communist Party in the liquidation of corruption in the Chinese society. The author states the need to examine the experience of China's law-making process in the field of anti-corruption in order to be applied by the Russian legislators, taking into account national peculiarities of national legal culture and enforcement practice.

Criminal Liability of Legal Persons in Case of Computer Crime: A European Union Response

Abstract The contribution deals with the criminal liability of legal persons in case of computer crime. It is divided into three sections. The first section briefly introduces computer crime and relevant legislation of the European Union in the area of criminal law, which is the basis of that liability. While the second section is focused on provisions of criminal liability of legal persons, the third section is focused on sanctions for legal persons.

О введении в России института уголовной ответственности юридических лиц

The number of European countries which have included into their national legislation the provision on criminal liability for legal persons (corporations) has been continuously growing. The following countries remain essential supporters of preserving criminal liability for individual guilt: Germany, Russia, Italy, and, may be, Poland, where after the adoption of the Law on Liability of Collective Entities for punishable offences, the Constitutional Tribunal in 1994 adopted the decision to consider this liability to be not criminal, but sui generis. Some Russian legal theorists were quick to support the tendency to recognize the practicability of introducing criminal liability for legal persons in spite of centuries-old traditions of liability for a personal guilt that is characteristic of the criminal law of the European continental countries. This can be explained by an excessive influence of the Anglo-Saxon common law countries, whose representatives went all out during the preparation of many international conventions to include into them the provisions that require establishing criminal liability for legal persons in national legislations of the European countries. But none of such conventions mentions the basis for criminal liability of legal persons. They fail to mention this fact, otherwise they would have to state that such liability suggests only strict liability. The author of the article tries to prove the irrelevancy of the above-mentioned type of liability in Russia with its rather effective administrative law and fairly solid provisions of the civil legislation which help to efficiently fight the damage incurred by legal persons (corporations) to different entities protected by the law. Introduction of the provisions on criminal liability for legal persons into the Russian criminal legislation touches upon the foundation on which all types of legal liability in this country are based on, as well as domestic centuries-old traditions, for it is not possible, without changing anything in the principal structure of the criminal responsibility, to simply include, without solid justification of the adopted changes, a new provision into the Criminal Code of the Russian Federation, in which only a range of criminal acts for which legal persons may be liable would be outlined, without indicating grounds for their criminal liability, in contrast with the grounds for the liability of physical persons.

La función de los "Compliance Programs" en la responsabilidad penal-económica de la empresa

La responsabilidad penal de las personas jurídicas, introducida en el Código penal en 2010, puede interpretarse como un intento por hacer eficaces los delitos económicos, siempre problemáticos en materia de autoría. En esa línea, la reciente reforma penal ha introducido los Compliance Programs, que proponen un modo de exención de la responsabilidad penal de las empresas vinculado a la asunción de una función preventiva en su propia estructura.

Criminal policy on corporate criminal liability: Different theoretical approaches

The article focuses on different theoretical approaches towards establishing corporate criminal liability in national legislatures. Corporate crime is a serious criminal phenomenon, which produces high level of social danger in many fields - economy and trade, health and safety at work­place, environmental protection, human rights and others. Introducing criminal liability of legal persons in most of contemporary legislatures has opened theoretical debates in various academic disciplines, such as criminal law, criminology, sociology and social psychology, economic science and others. As a significant criminological discipline, criminal policy is supposed to analyze arguments pro et contra corporate criminal liability as an instrument of prevention and combat against corporate and other forms of white-collar crime. The central part of the article examines different theoretical views and arguments on efficiency and justification of legislative measures towards corporate crime phenomenon. The author stresses economical, sociological and corporate cultural aspects of introducing and implementing criminal liability of legal persons. The author aims to shed light on different dimensions of the matter, pointing to interdependency of various aspects.