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RESPONSIBILITY OF JURIDICAL PERSONS, General rule or exception?
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clearly determines the scale applicable to the illicit deed – that one of the specialcrime.
As it could not be any other way, a special system is established, set for the juridicalperson, of criminal reactions, whereby it is foreseen: a) the cancellation of thejuridical person. b) The penalty. c) The total or partial suspension of activities. d) Theloss of state benefits. e) The legal benefits, and f) the publication of the condemningsentence.
Regarding the regulation of the parameters for the legislative determination of thepenalty of fine (art. 52) it foresees an equivalent between the “fine unity” and a day ofprison. To stipulate the amount of the fine unity a legal framework between 100 and10,000 quetzales is determined, amount that is updated by the Supreme Court.
In all these dispositions we must pinpoint the sharp orientation towards theredressing of the damage caused, tendency that reaches its highest expression inthe legislative explanation of the ones described in the project “mandatory benefits.”
As long as the illicit deed or crime committed by a juridical person implied thedamage to the good or collective interest, the court, in addition to the penaltiesforeseen, may establish activities or obligations of public good, geared to the returnof the things to its earlier state or the one the law wants. The fulfillment of theseactivities or obligations will be mandatory for the juridical person.
To end up, it is worthwhile mentioning that a set of security measures is alsoforeseen “when the reiteration of the illicit deed or crimes lead to presume thecontinuation of the illicit practices, or it may endanger the public interest regardingthe good faith in business,”
These measures are: a) the creation of a special
vigilance council determined by the court. b) periodic auditing of the activities of thejuridical person. c) the obligation to submit statements of account at dates set by thecourt; and d) the obligation to request judicial authorization to carry out individualactions.”
For the judicial determination of these measures, a maximum deadline of five years isset, except in the case when the directive staff continues, in which case this deadlineis extended to ten years.
3.3.1. Project for the Criminal Code of Guatemala
Title VII. Criminal Responsibility of Collective Persons
Art. 46. Special illicit deeds. To moral agents will be imputable the crimes foreseen inTitles V, VI, VII, VIII, IX, X, XI, XII, XIII, XIX, and XX, chapter 2 of the First part of theSecond Book, and the faults of title VI of the Second Part of the same book., when ithas to do with deeds carried out by the regular organs, as long as they are within thenormal or apparent activities or object of their businesses.
The omission of an act will also be imputable, when the juridical person is obliged todo so, or has formally accepted such duty, or such obligation arises from an illicitdeed coming from the same person or from another one who has ties with him.
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| | Authors: Guerra-Garcia, Yolanda. |
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clearly determines the scale applicable to the illicit deed – that one of the special
crime.
As it could not be any other way, a special system is established, set for the juridical
person, of criminal reactions, whereby it is foreseen: a) the cancellation of the
juridical person. b) The penalty. c) The total or partial suspension of activities. d) The
loss of state benefits. e) The legal benefits, and f) the publication of the condemning
sentence.
Regarding the regulation of the parameters for the legislative determination of the
penalty of fine (art. 52) it foresees an equivalent between the “fine unity” and a day of
prison. To stipulate the amount of the fine unity a legal framework between 100 and
10,000 quetzales is determined, amount that is updated by the Supreme Court.
In all these dispositions we must pinpoint the sharp orientation towards the
redressing of the damage caused, tendency that reaches its highest expression in
the legislative explanation of the ones described in the project “mandatory benefits.”
As long as the illicit deed or crime committed by a juridical person implied the
damage to the good or collective interest, the court, in addition to the penalties
foreseen, may establish activities or obligations of public good, geared to the return
of the things to its earlier state or the one the law wants. The fulfillment of these
activities or obligations will be mandatory for the juridical person.
To end up, it is worthwhile mentioning that a set of security measures is also
foreseen “when the reiteration of the illicit deed or crimes lead to presume the
continuation of the illicit practices, or it may endanger the public interest regarding
the good faith in business,”
These measures are: a) the creation of a special
vigilance council determined by the court. b) periodic auditing of the activities of the
juridical person. c) the obligation to submit statements of account at dates set by the
court; and d) the obligation to request judicial authorization to carry out individual
actions.”
For the judicial determination of these measures, a maximum deadline of five years is
set, except in the case when the directive staff continues, in which case this deadline
is extended to ten years.
3.3.1. Project for the Criminal Code of Guatemala
Title VII. Criminal Responsibility of Collective Persons
Art. 46. Special illicit deeds. To moral agents will be imputable the crimes foreseen in
Titles V, VI, VII, VIII, IX, X, XI, XII, XIII, XIX, and XX, chapter 2 of the First part of the
Second Book, and the faults of title VI of the Second Part of the same book., when it
has to do with deeds carried out by the regular organs, as long as they are within the
normal or apparent activities or object of their businesses.
The omission of an act will also be imputable, when the juridical person is obliged to
do so, or has formally accepted such duty, or such obligation arises from an illicit
deed coming from the same person or from another one who has ties with him.
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