Discussions regarding the conditions of the criminalresponsibility of the legal person in the regulationof the new criminal codemihai

• Author: Mihai Adrian Hotca - Radu Slavoiu
• Position: PhD.Associated Professor, Dean of Faculty of Law, 'Nicolae Titulescu' University, Bucharest - PhD. Candidate, 'Nicolae Titulescu' University, Bucharest
• Pages: 91-106

Andrada Trusca

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LESIJ NO. XVII, VOL. 2/2010

DISCUSSIONS REGARDING THE CONDITIONS OF THE CRIMINAL

RESPONSIBILITY OF THE LEGAL PERSON IN THE REGULATION

OF THE NEW CRIMINAL CODE

Mihai Adrian HOTCA∗

Radu SL;VOIU1∗∗

Abstract

According to the new Criminal code, the legal person, except for the state and the public

authorities, is criminally responsible for the infractions committed for the carrying out of the

activity object or in the interest and in the name of the legal person. The public institutions are not

criminally responsible for the infractions committed for the carrying on of an activity that is not

the object of the private domain. The criminal responsibility of a legal person does not exclude the

criminal responsibility of the natural person that contributed to the committing of the same deed.

In what follows, we will try to present the general conditions regarding the engagement of the

criminal responsibility of the legal persons, filtering through our own analysis various opinions

expressed in doctrine regarding this theme, the purpose of which is the prevention of some non-

unitary solutions in the judicial praxis.

Keywords: n ew Criminal code, criminal responsibility, legal persons, public institutions,

public authorities, non- unitary solutions.

I. Introduction

The criminal responsibility of the legal person is encountered in more national law systems.

For instance, in the Great Britain, the Netherlands, Belgium, France, the USA etc. In what comes,

we will briefly analyze some of these.

In the Great Britain, the criminal responsibility of the legal person is based on the theory

of identification that implies a mechanism that contains two stages: (1) the analysis of the

constitutive elements of the infraction regarding the natural person doer; (2) the identification, that

is the verification if the natural person that has a certain position within a legal person represents

this one’s thinking and will2. The criteria based on which the natural persons that are the carriers

of the thinking and will of the legal person are to be identified refer mainly to the idea of authority

and control over it and it is considered that only the deeds committed by the controlling officer

attract the criminal responsibility of the company. To this category belong the natural persons that

have the capacity of manager, director etc. and that participate to the controlling of the legal

person, as well as the officials with similar functions. The theory of identification was criticized,

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∗PhD.Associated Professor, Dean of Faculty of Law, “Nicolae Titulescu” University, Bucharest.

∗∗PhD. Candidate, “Nicolae Titulescu” University, Bucharest.

1 This work was supported by CNCSIS –UEFISCSU, project number PNII – IDEI 860/2009- cod CNCSIS

ID-1094.

2 A. Jurma, Persoana juridic< – subiect activ al infracYiunii/ Legal person - active subject of the infraction,

C.H. Beck Publishing house, Bucharest, 2010, page 43.

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LESIJ NO. XVII, VOL. 2/2010

assuming that the controlling officers could detach (isolate) from the illicit practices of the legal

person that they controlled, so that the criminal responsibility of a certain legal persons should not

be engaged3.

In the United States of America, with some exceptions, the criminal responsibility of the

legal person was based on the idea of the respondeat superior. According to this theory, a

company is criminally responsible for the deeds committed by any of its agents or employees, if

two conditions are met. The first condition is that the agent or employee of the legal entity should

have carried on its activity within the limits of its attributions granted by the latter. The second

condition is that that natural person should have totally or partially taken action for the benefit of

the corporation. At present, it is encountered the theory of the aggregation (called also of the

collective consciousness), that was conceived by certain American federal courts and allowed, if

the corporatist will belonged to more natural persons, that all the „particles” of subjective elements

should be united in a single subjective element, imputable to the legal person. Besides its

innovative character, this theory was not accepted by all the America courts that reproached with it

that the individual cognitive elements could not be comprised in order to make a whole, and if, by

referring it to the involved natural persons, the entire subjective element could not be retained, the

comprising was not possible4.

The Netherlands also instituted the criminal responsibility of the legal person, which had a

certain particularity compared to the regulation in our country5. One of the elements that

singularize the criminal responsibility of the legal person in the Dutch law is the domain of the

collective entities that are criminally responsible; certain groups of persons that do not benefit

from the legal personality belong also to this category. Then, in order to engage the criminal

responsibility of the collective entity, it is necessary that the criminal responsibility of a natural

person that carries out a function according to the social purpose of the entity should previously be

established.

In the French law, the criminal responsibility of the legal p erson was introduced through

Criminal code since 1994 (art. 121-2) which was incident, also as in the case of the Romanian law,

only in the case of the entities endowed with legal personality. Although, in the initial form, the

criminal responsibility of the legal person was exclusively incident in the case of the infractions

for which there was a precise provision in this sense (specialty principle), starting with year 2005

(when the Criminal code was modified), it has been instituted the generality rule of the criminal

responsibility of the legal person, without this should be limited to certain infractions. From the

point of view of the conditions necessary for the engagement of the criminal responsibility of the

legal person, the French Criminal code was interpreted in the sense that this form of responsibility

could be engaged only if an infraction had been committed by a representative or organ of the

legal person. It is still accepted that, based on the legislative modifications in 2000 in the case of

the voluntary infractions, the holding criminal responsible of the legal person is possible, no matter

of the previous retaining or not of the conditions of the criminal responsibility of a natural person.

Based on monitoring reports drawn up by GRECO6 and OCDE7, certain conclusions were

drawn regarding the way how the criminal responsibility of the legal persons was regulated in

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3 Idem, page 45.

4 In praxis, it was shown that „One can not add an innocen t mental attitude to another innocent mental

attitude so that the result should be guilt” (cause of Armstrong v. Strain), quoted by A. Jurma, quoted work,

page 48.

5 We mention that the criminal responsibility of the legal entities was stipulated in the Dutch law since 1870.

6 Group of States against Corruption set up at the level of the Council of Europe. This Group consists of 45

European states and the United States of America. www.coe.int.

7 www.oecd.org.