(Page 9 of 24) - RESPONSIBILITY OF JURIDICAL PERSONS, General rule or exception? authored by Guerra-Garcia, Yolanda.

dealing with narcotrafficking, money laundering, slavery, arms purchasing and sale,
alkaloid purchasing and sale, purchase and sale of chemical products necessary for
the processing of the said alkaloid products, productions and manufacturing of
adulterated medical products, with the grave standing that the criminal deed is now
centered not only on one state, but it is affecting the international community as a
whole.

Even though for some authors it is not necessary to determine the responsibility of
moral agents since modern criminal codes have created a new figure of the
authorship to solve the problem, being this acting in the place of the other one in
criminal law. For example, the Colombian criminal code

in article 29, section 3,

regulates this instance as an independent way of shared participation, according to
which whoever acts in legal representation of a juridical person of a collective entity
is wholesome responsible, and considering his actions he will be as responsible as
the partnership.

2.4.

GENERAL COMMENT

The issue whether only the physical person can be the active subject of the crime, or
if, some way, this can be extended to juridical person of the-fact groups is quite old
fashioned.

In Spain it was being solved in a negative manner. For this, the axiom of societas
delinquire non potest is brought about, based on the assertion that entities different
from the human being do not have, according to the traditional criminal Law, the
capacity for will, for guiltiness, or for the facing of the penalty.

In the XVIII and XIX centuries, when the axiom takes strong hold, more from
dogmatic and political-criminal considerations more than from the theory of fiction.
According to some authors, this supposes to grant juridical personality to certain
entities without ontic capacity to understand and make decisions.

In most of foreign legislation, and from some time ago, this limitation has been
overcome. It has been done foreseeing the possibility that the criminal responsibility
of moral agents, or using efficient formulas of criminal politics, without abandoning
the dogma societas delinquire non potest as a general rule. Thus a door has been
left open to give way, later on to the renovating step , (Art. 11 of the 1982 Portuguese
Criminal Code: “Except some disposition

against it, only single persons are

susceptible of criminal responsibility.”) or else the capacity for criminal responsibility
has been declared for moral agents in the supposition where special criminal norms
accept it thus in an express manner (1994 French Criminal Code, Art. 121.2).

In the second place, what for some codes are safety regulations, for others, such as
the criminal Code presently in force, accessory consequences of the crime can
likewise affect companies, partnerships, associations, or foundations. Thus, Title VI
of Book I of the new Code orders (art. 127 and following) the seizing both of the
effects and instruments of the crime, as well as the earnings obtained from the same;
the temporary or definite closing down of the company, its offices or premises; the

Colombian Criminal Code, article 29