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RESPONSIBILITY OF JURIDICAL PERSONS, General rule or exception?
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Criminal responsibility
Some scholars state that a juridical person lacks of what is the most importantelement to consider someone responsible: the desire to commit a crime, and theknowledge of breaking the law - this is the psychological element.- However, thesecircumstances can only be preached of a natural person who has the will todiscriminate between good and evil and has the knowledge, or at least should have,of the law.
Nonetheless, organized crime has been an “institution” for years and has causedgreat pain and damage, not only nationally, but internationally, and lately in a globalmanner. Juridical persons or moral agents commit seventy percent of terrorism,prostitution, narcotraffic, genocide, child pornography and other crimes. These kindsof persons hide under a curtain of religion, of business, or of otherwise any legalactivity.
In modern law, there is no doubt of the acceptance of criminal responsibility ofjuridical persons.
They are already subjects of liability under administrative or
contraventional law, including environmental law (involving punishments such asfines, closure of establishments, and in some cases the loss of property, rights orprivileges. These are known in criminal law as accessory penalties.
The bottom line is that the problem of criminal responsibility of juridical persons isreduced to the issue of “what kind of punishment to apply to them”, since everybodywould agree these kind of persons are completely responsible and have to bear thelegal or illegal consequences of their acts.
The purpose of punishment
Punishment is defined by Black’s Law Dictionary as the sanction assessed against aperson who has violated the law.
The purpose of establishing some kind of
punishment against somebody has revolved around four concepts throughout history.These concepts are RETRIBUTION, getting even. RESTITUTION; where the goal isnot
to
punish,
but
to
obtain
the
repair
of
the
damage
for
the
victim.
EXEMPLIFICATION, so that others will not follow the bad one, and finallyREHABILITATION -although for the majority, this is more an abstract idea because itis difficult to achieve this in criminal law: if one gets punished it is probable that in theend one becomes more evil, angry, and frustrated than before the punishment. Thatis why the idea of rehabilitation as the goal of punishment is more utopic than fact.
Modern tendencies
Although the majority of countries agree that both domestic and multinationalcorporations have been committing crimes throughout history without receivingproper punishment, to our surprise, no country states the responsibility of juridicalpersons in their criminal codes, subsequently applying correctives measures to theseentities.
There is a Unified Criminal Code that has been proposed for Latin America (morethan 20 countries) and contemplates the criminal responsibility of juridical persons as
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| | Authors: Guerra-Garcia, Yolanda. |
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Criminal responsibility
Some scholars state that a juridical person lacks of what is the most important
element to consider someone responsible: the desire to commit a crime, and the
knowledge of breaking the law - this is the psychological element.- However, these
circumstances can only be preached of a natural person who has the will to
discriminate between good and evil and has the knowledge, or at least should have,
of the law.
Nonetheless, organized crime has been an “institution” for years and has caused
great pain and damage, not only nationally, but internationally, and lately in a global
manner. Juridical persons or moral agents commit seventy percent of terrorism,
prostitution, narcotraffic, genocide, child pornography and other crimes. These kinds
of persons hide under a curtain of religion, of business, or of otherwise any legal
activity.
In modern law, there is no doubt of the acceptance of criminal responsibility of
juridical persons.
They are already subjects of liability under administrative or
contraventional law, including environmental law (involving punishments such as
fines, closure of establishments, and in some cases the loss of property, rights or
privileges. These are known in criminal law as accessory penalties.
The bottom line is that the problem of criminal responsibility of juridical persons is
reduced to the issue of “what kind of punishment to apply to them”, since everybody
would agree these kind of persons are completely responsible and have to bear the
legal or illegal consequences of their acts.
The purpose of punishment
Punishment is defined by Black’s Law Dictionary as the sanction assessed against a
person who has violated the law.
The purpose of establishing some kind of
punishment against somebody has revolved around four concepts throughout history.
These concepts are RETRIBUTION, getting even. RESTITUTION; where the goal is
not
to
punish,
but
to
obtain
the
repair
of
the
damage
for
the
victim.
EXEMPLIFICATION, so that others will not follow the bad one, and finally
REHABILITATION -although for the majority, this is more an abstract idea because it
is difficult to achieve this in criminal law: if one gets punished it is probable that in the
end one becomes more evil, angry, and frustrated than before the punishment. That
is why the idea of rehabilitation as the goal of punishment is more utopic than fact.
Modern tendencies
Although the majority of countries agree that both domestic and multinational
corporations have been committing crimes throughout history without receiving
proper punishment, to our surprise, no country states the responsibility of juridical
persons in their criminal codes, subsequently applying correctives measures to these
entities.
There is a Unified Criminal Code that has been proposed for Latin America (more
than 20 countries) and contemplates the criminal responsibility of juridical persons as
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