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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
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3.2.3.
The Relation between the criminal liability of a legal person and that of its agent
The persons whose acts can engage corporate liability
Given the different approaches, there are specific differences regarding the persons whose acts can
engage corporate liability. Depending on the doctrinal model adopted, national legislators have been
relating the liability of the legal person to the liability of:
A responsible person
, defined either institutionally, according to their position, or functionally,
according to their role, as a person with the right (institutional definition) or power (functional
definition) to influence or control the legal person’s acts. The category can include directors,
managers, administrators, censors, auditors, shareholders with enough power etc.);
An employee
of the legal person, when the liability of the legal entity is based on its failure to
supervise;
A related person
, not necessarily an employee;
No specific natural person
, following the idea of the legal person’s liability through the concept
of corporate fault. In this case the law does not determine the specific persons whose acts can
engage the liability of a legal entity, but it requires that their “deeds have to be committed in the
form of the guilt provided by the penal law”
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. The guilt of the legal person is not defined as such
in the law, but the doctrine relates it to the instigation, authorisation or tolerance of the criminal
behaviour generated by the lack of control or supervision over the employees, lack of proper
internal organization or a proper integrity policy.
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This approach allows in Romania for the
criminal sanction of legal persons managed formally by “straw men”.
The Relation between the legal person and its agent’s misbehaviour
All the models of corporate liability seek to make a distinction between crimes serving the private goals
of the perpetrator and crimes intended to further the company’s business. No model makes the legal
person responsible for offences committed by responsible persons purely in their private interests.
Several connection criteria are used to define the situations where the legal person is liable
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:
The interest criterion
, which means criminal liability is related to acts perpetuated in the interest
of the legal person. In this case, in most legal systems the question over the criminal liability for
acts in the benefit of an affiliated entity remains opened.
The responsibility criterion
, applicable in some countries where corporate liability is based on
the ‘extended identification model’. According to this approach, only if the responsible person is
acting within the limits of its responsibility, is the legal person’s liability engaged.
“Acting on behalf of…”
the legal person is a widespread criterion for linking the agent’s misdeeds
with the company’s business.
Acts “at the legal person’s expense”
can engage corporate criminal liability in some jurisdictions,
if the legal person bears the legal or material consequences of that act, for example, when the
company’s money is used for bribery.
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Romanian Criminal Code, Article 16.
15
Andra-Roxana TRANDAFIR-ILIE. 2015. “Răspunderea penală a persoanei juridice” in Superior Council of
Magistracy and National Institute of Magistracy,
Conferințele Noului Cod Pena
l. Bucharest.
16
OECD Anti-Corruption Network for Eastern Europe and Central Asia. 2015.
Op. cit.
, p. 25-26.