Responsibility of legal persons for criminal act is one of the institutes which is gaining in importance in the modern world. It has been known since the earliest periods of legal history. The different attitude of the legislature towards this institute was accompanied by different theoretical views regarding the same. In this sense, there are very conflicting understandings about the justification of adopting the concept of criminal liability of legal persons, as well as about the conditions of liability of legal persons for criminal act, as well as other questions in connection with this institute.
The development of this institute in our law became actual at a time when with the introduction of a new commercial system based on self-government, begin to appear new forms of illicit activities in the commercial business, which were characterized by criminal acts.
The basic question that arises is that the liability of the legal persons for criminal act relates to the basis of liability, respectively the dilemma of whether the intent or negligence may also apply to a legal person, or whether its liability can be inferred from a lack of organization or functioning of a legal person, even when no physical person has been previously declared liable. Namely, a legal person has no physical existence and can only be considered indirectly guilty, that is, responsible for criminal act, omissions or failures of employees acting within the legal person.
Therefore, a legal person leftovers a legal by law, but which can only act through its employees, for which it is responsible. In other words, a legal person as a subject of law cannot have “intent” as a basis for criminal liability, so the question is raised as to the basis of a legal entity’s liability for a criminal act !?
In order for criminal liability to be attributed to a legal person, certain conditions must be fulfilled. Conditions for liability of legal persons for criminal offenses are usually stated:
– the nature of the criminal act for which the legal person may be responsible,
– the link between the legal person and the criminal act and
– persons associated with responsibility.
Recommendation R (88) 18 of the Committee of Ministers of the Council of Europe is not quite specific as to the nature of the criminal act for which legal persons may be held responsible. It mentions only criminal act that cause significant harm to both individuals and society, as well as acts committed in the exercise of legal persons’ activities, even when the act is foreign to the purpose of the legal person.
The Serbian legislation has adopted a system of derivative, subjective and cumulative liability of legal person for criminal act.
Namely, although Article 6 paragraph 1 of the Law on Liability of Legal Persons for Criminal Act refers to the character of the derived liability of legal persons for criminal act, Article 7 of the Law on Liability of Legal Persons for Criminal Act refers to the subjective and cumulative character of that liability of legal persons.
Responsibility of the right person assumes that the responsible person has all the elements of guilt:
- Intent or negligence, and
- Unlawful awareness.
However, the absence of grounds for exclusion of guilt in the liability of legal entities for criminal act, it is assumed, while their existence must be established. If all the elements of guilt exist with the responsible person in the legal person, then the guilt is entered into the legal person, that is, the cumulative liability of the responsible and legal person occurs.
Although the liability of a legal person is based on the responsibility of the responsible person, this may not always be the case. Namely, in certain conditions, the liability of the legal entity is not based on the liability of the responsible person in the legal entity, that is, it does not constitute a “sine qua non” condition for the liability of the legal entity.
Namely, a legal person can be held liable if the proceedings are discontinued or the charges are dismissed, which is provided for in Article 7, paragraph 2 of the Law on Liability of a Legal Person for Criminal Act.
When it comes to suspending the proceedings against the responsible person, the reasons for the suspension are important for the criminal liability of the legal person. Thus, if the proceedings are discontinued on the grounds that the act which is the subject of the charge is not a criminal act, the question of liability of the legal person is not raised because there is no criminal act. However, if the suspension has occurred, e.g. due to the statute of limitations which precludes the prosecution of the responsible person, this fact does not preclude the conduct of proceedings against the legal person.
In addition, according to Article 35, paragraph 2 of the Law on Liability of Legal Persons for Criminal Act, if due to the existence of legally determined reasons it is not possible to initiate or conduct criminal proceedings against the responsible person, the competent public prosecutor may initiate proceedings only against the legal person.
Adoption of the Law on Liability of Legal Persons for Crimes, at the sitting held on 23.10.2008. In the National Parliament of Serbia, the position adopted in the legal theory on the necessity of introducing liability of legal persons for criminal offenses was adopted.
Therefore, it is accepted that establishing such responsibility is possible and necessary, both for criminal and political reasons and to comply with the legal standards contained in many relevant international instruments and to align with existing legislation in the Member States of the European Union.