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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
12
c.
Administrative punitive liability for criminal offences
perpetrated by the managers (or even
employees) of corporations.
d.
Administrative punitive liability for administrative offences
in jurisdictions that are still following
the principle
societas delinquere non potest
, which rejects the idea that a legal person can commit or
be held liable for a crime.
The advantages of the criminal liability lies in the existence of mechanisms to ensure the punishment of
the culprits and, at the same time, the existence of strong guarantees of fair treatment
10
, including:
Existence of procedural guarantees for defendants which are legal entities
. The OECD Anti-
Corruption Network for Eastern Europe and Central Asia assessment stresses that “criminal
sanctions usually have serious negative impacts on convicted persons, the imposition of criminal
sanctions is accompanied by certain procedural guarantees, such as the presumption of
innocence, the right to present a defence, the guarantee against self-incrimination, etc.
Comparable guarantees are not always present in an administrative proceeding, as its impact is
not considered to be as harmful.”
Effective and varied investigative tools specific to criminal prosecution.
However, in most
jurisdictions where criminal liability of the legal persons is not applicable, all necessary evidence
against a legal person can be collected during the criminal proceedings previously conducted
against the human perpetrator.
Trials taking place before specialised competent courts following criminal proceedings,
as it is
reasonable to believe that criminal court judges are most competent to hear cases brought
against legal persons.
Availability of mutual legal assistance and other international cooperation mechanisms
, while
there are a number of international instruments regulating international mutual legal assistance
and cooperation in criminal matters, but only few treaties deal with international cooperation in
administrative law matters.
Longer statute of limitations periods
in the case of criminal offences compared with the
administrative offences.
Stronger deterrence effect of the criminal liability compared to the administrative one
, as
a
conviction for a crime is not just a punishment, but also a stigma that may seriously harm a
person’s and a business status and relationships in the community, while administrative liability
has little, if any similar effect. However, one can argue that in the case of the legal persons and
especially of corporations (small, medium or large enterprises) the “nature of the offence makes
much more sense for the public at large” than the legal classification of the punishment, the
stigma on the business being related to the unlawful act committed, not to the legal mechanisms
ensuring its investigation and punishment.
3.2.2.
Theoretical approaches to the criminal liability of legal persons
Two main theories have been developed by practice and doctrine concerning corporation’s criminal
liability:
a.
The identification theory
, originated in the United Kingdom, is the most influential doctrine of liability
for legal persons around the world, considering that a corporation may be held liable for acts of its
10
Ibid
, pp. 14-17.