Substantive Criminal Law
Week 7:
Chapter 10: Corporate Criminal Liability
Criminal offences may not only be committed by individual human beings (natural persons),
but also by corporations (legal persons).
Legal persons/corporations/legal entity are all synonyms.
It can be argued that the general objectives of criminal law are of course also applicable to
corporate crime. Of course, corporations cannot be put in prison, but a range of alternative
sanctions can still be applied. There might be financial sanctions, these may include
forfeiture of illegal profits, the obligation to repair certain damage caused by the corporate
wrongdoing, prohibition on participating in public tenders, and prohibition on certain
economic activities.
Without corporate criminal liability there would be a risk that only some individuals would be
persecuted for offences that were in reality caused by corporate policies and practices that
transcend individual actions, even when the latter can be considered in themselves to be
criminal offences.
If through an illegal practice a company enjoys a financial or other economic benefit like a
better market position, it stands to reason that the legal entity should be the one to pay the
price, and not the employees who have contributed to the commission of the offence.
Approaches to corporate wrongdoing: a conceptual overview:
The whole field of criminal law is traditionally designed for natural persons, as only
individuals can act, so it is argued, and only human beings are considered to be morally
blameworthy.
There are 2 main approaches to tackle corporate wrongdoing: should a corporation be
perceived as nothing more than a legal fiction, composed of real human beings, or is a
corporation in itself an organisational social reality, capable of acting quite independently of
its individual members?
There is a nominalistic or derivative liability approach: a legal entity is only what its name
already implies, i.e. a legal fiction; a corporation should therefore only be looked upon as a
collectivity of individuals. Criminal liability of the legal person is necessarily derived from
individual wrongdoing.
It may be called anthropomorphic because it reduces a corporation to human beings, and
corporative wrongdoing to their individual decisions and conduct. It is also anthropomorphic
in a more metaphorical senses, as it views corporate personality itself as similar to the
personality of a human being.
Criminal liability of a legal entity consequently consist in attributing the actus reus (act or
omission respectively) and the mens rea of a natural person to the legal person. However,
the downside is that if there is no individual responsibility, there can be no corporate liability
either.
The second approach is the exact opposite of a derivative view on corporate liability, and is
called the realistic or organisational approach which looks upon corporate personality as
something more and different from only the sum of its parts.
This model embodies the idea that a corporation is in itself a dynamic organisational reality,
capable of acting independently from its individuals. It means that legal entities may act and
be at fault in ways that are different from the ways in which their human members can act
and be at fault.
Week 7:
Chapter 10: Corporate Criminal Liability
Criminal offences may not only be committed by individual human beings (natural persons),
but also by corporations (legal persons).
Legal persons/corporations/legal entity are all synonyms.
It can be argued that the general objectives of criminal law are of course also applicable to
corporate crime. Of course, corporations cannot be put in prison, but a range of alternative
sanctions can still be applied. There might be financial sanctions, these may include
forfeiture of illegal profits, the obligation to repair certain damage caused by the corporate
wrongdoing, prohibition on participating in public tenders, and prohibition on certain
economic activities.
Without corporate criminal liability there would be a risk that only some individuals would be
persecuted for offences that were in reality caused by corporate policies and practices that
transcend individual actions, even when the latter can be considered in themselves to be
criminal offences.
If through an illegal practice a company enjoys a financial or other economic benefit like a
better market position, it stands to reason that the legal entity should be the one to pay the
price, and not the employees who have contributed to the commission of the offence.
Approaches to corporate wrongdoing: a conceptual overview:
The whole field of criminal law is traditionally designed for natural persons, as only
individuals can act, so it is argued, and only human beings are considered to be morally
blameworthy.
There are 2 main approaches to tackle corporate wrongdoing: should a corporation be
perceived as nothing more than a legal fiction, composed of real human beings, or is a
corporation in itself an organisational social reality, capable of acting quite independently of
its individual members?
There is a nominalistic or derivative liability approach: a legal entity is only what its name
already implies, i.e. a legal fiction; a corporation should therefore only be looked upon as a
collectivity of individuals. Criminal liability of the legal person is necessarily derived from
individual wrongdoing.
It may be called anthropomorphic because it reduces a corporation to human beings, and
corporative wrongdoing to their individual decisions and conduct. It is also anthropomorphic
in a more metaphorical senses, as it views corporate personality itself as similar to the
personality of a human being.
Criminal liability of a legal entity consequently consist in attributing the actus reus (act or
omission respectively) and the mens rea of a natural person to the legal person. However,
the downside is that if there is no individual responsibility, there can be no corporate liability
either.
The second approach is the exact opposite of a derivative view on corporate liability, and is
called the realistic or organisational approach which looks upon corporate personality as
something more and different from only the sum of its parts.
This model embodies the idea that a corporation is in itself a dynamic organisational reality,
capable of acting independently from its individuals. It means that legal entities may act and
be at fault in ways that are different from the ways in which their human members can act
and be at fault.
