Summary
The controversy about the existence of criminal responsibility of legal persons, currently fills important investigative spaces, given the need to establish the basis of "punishment" and the "responsibility" that can be attributed to it. The convenience of scientifically substantiating the possible criminal liability of legal persons is present, every time the fight against modern crime, called unconventional, is designed, whose crime in its most genuine manifestations occurs through companies or collective entities, which They adopt the different forms of legal persons that the doctrine admits. Today the issue of criminal liability of legal persons is related, mainly, to the field of economic crimes, that is,to all punishable actions and administrative offenses that are committed within the framework of their participation in economic life and in legal traffic, thus developing a business crime, which includes all crimes that are committed from a company or through entities collective, and where important legal assets of a macro - social nature are damaged. The affectation of these legal assets is closely linked to the protection of the environment, economic and credit relationships, consumer protection, among other criminal manifestations.that includes all the crimes that are committed from a company or through collective entities, and where important legal assets of a macro - social nature are injured. The affectation of these legal assets is closely linked to the protection of the environment, economic and credit relationships, consumer protection, among other criminal manifestations.that includes all the crimes that are committed from a company or through collective entities, and where important legal assets of a macro - social nature are injured. The affectation of these legal assets is closely linked to the protection of the environment, economic and credit relationships, consumer protection, among other criminal manifestations.
Social reality shows, in turn, that there are "legal persons" "collective entities", "companies" or "entities" that have all the favorable conditions to act freely in the market, defraud their clients, launder money, pollute the environment. environment, sell defective products, in order to affect fundamental goods, which cause serious social damage.
It is also a true fact that legal entities dominate commercial trafficking on a large scale and that the main crimes are committed today, a phenomenon that has been making its way since the beginning of the 20th century, but which today reaches unusual dimensions, already in In 1934 Jiménez de Asúa, when he prefaced Antonio Rodríguez Santos' book on “Financial crime”, said: “Sixty years ago the Spanish in prison, anxious to deprive another of his fortune or his savings, would go to the mountains, with classic calañés and orange blunderbuss, escaping from his pursuers on the back of the Andalusian jackfruit. Today he creates companies, disfigures balance sheets, simulates disbursements and subscriptions and escapes on the comfortable seat of his car ”, with this graphic vision the movement that has occurred in the forms of commission of crime is described,which requires a differentiated treatment, therefore criminal dogmatics requires a rethinking of its categories.
The legal difficulties of affirming the criminal responsibility of legal persons are linked to issues that concern the problem of the subject and the legal norm. In this sense, the traditional arguments used to deny the criminal responsibility of legal persons are based on the incompatibility of the same with the dogmatic categories of action and guilt, as well as the function and the very essence of the penalty.
The discussion on this topic has always revolved in relation to the incompatibility of applying these concepts to the legal person, because the comparison between the natural person and the latter is always sought, however if we want to obtain adequate results in the discussion we must face the same from the perspective of considering each one as independent and different subjects, who need that the concepts applied to them have this same conception.
Also important in this discussion is the possibility of imposing penal sanctions on legal persons and the controversy is debated between two totally opposite doctrinal extremes: those who consider that only administrative or civil sanctions can be imposed and those who consider that it is It is possible to impose penalties on them within the Criminal Law framework, a position that we analyze and defend given the existence of elements that allow sustaining the capacity for penalties within the framework of Criminal Law.
The consequences that those who violate the legal norm must suffer is an important part of this doctrinal development, therefore, introducing the main criminal structures in which the legal person may be present and the sanctions that can be applied to them, constituted questions in the same way to be resolved in the investigation, in order that this refers fundamentally to a very specific question, which is given in determining, to what extent and under what conditions a legal person can be criminally responsible and, where appropriate, what sanctions can be imposed, that is, under what assumptions legal persons can be subjects of Criminal Law.
Currently, the issue of legal entities is accentuated in Cuba, due to the fact that the modifications introduced by Decree-Law 175 of 1997, incorporated this institution into the Cuban criminal legal system, which motivates the deep analysis of it, Among other things, because the operators of the justice system need an adequate understanding of doctrinal concepts, which allows them; first, collect all the legal thinking that enables them to base the position adopted by Cuban criminal law and second, the necessary improvement of the system used so that its use and implementation can be viable, so we consider the following:
Scientific problem
Is our substantive law effectively regulates the criminal liability of legal persons?
For this we draw the following:
Overall objective
Assess the substantive criminal regulation on the criminal liability of legal persons.
Specific objectives:
- Analyze the doctrinal background on the configurability of criminal liability of legal persons. Assess the liability of legal persons from a legislative perspective.
Hypothesis
With the incorporation of substantive norms that specifically regulate the legal person, an adequate treatment of it would be achieved.
I. Historical doctrinal overview on the configurability of criminal liability of legal persons.
The doctrine uses the term "moral person or body" as a synonym, or adds the adjective "collective" to the so-called legal person, to clearly differentiate it from the human person, which as we have established, as a center of normative imputations, it is also a legal person, or legally relevant. Reality shows us, groups of people or goods, ordered to achieve permanent ends, making use of some means; These groups enjoy autonomy, they are established as independent centers of legal imputation and they are recognized with a different legal capacity both from the natural persons that make them up, and from their agents, representatives and administrators and we must not lose sight of, which is a purely civil concept,so its bases of general training are necessarily found in this branch of Law.
Legal persons are a result of the social and not purely individual nature of men, it will therefore be to the social reality where we must first look when it is necessary to discover and unravel the structure or composition of such entities or social bodies.
The existence of the legal entity must include two elements for its proper formation: 1) set of people united for certain purposes; 2) legal norms established to regulate the rights and obligations of these persons and their recognition;
Different meanings have been used to refer to legal persons and at present this is the most dominant, although some authors continue to call them legal or collective persons or simply legal entities.
The concept, by itself, is of an extraordinary complexity that forces us to enter first of all into its nature, to form a whole universe of elements that determine its true essence, knowing in advance that it will always be a multifaceted concept of different dimensions, and We join the statement made by De Castro, stating that “the legal person is one of the great topics of legal science. Perhaps no other legal figure has originated so many theories and sparked discussions of such entity before national and international courts. This exacerbation of a legal issue can be explained by the use made of the term and concept of the legal person, to cover a scientific apparatus and to hide political ideologies, or to put them at the service of powerful economic interests.
The existence of the legal person, necessarily part of its recognition in the law, where it is granted capacity, which may well be in a general or particular way, but the most common practice, is to fix in a special way for each type of person legal, the requirements that are demanded, according to their different classifications, an aspect in which there is no single criterion, and various assumptions are taken into account, considering that the most general elements that allow a wide distinction of them, are the following:
- By its structure in: corporate or social persons and Corporations By its function or legal capacity in: Public Law persons and Private Law persons By its nationality in: nationals and foreigners.
The Cuban Civil Code considers (numerus clausus) as legal persons in addition to the State:
- Companies and unions of state-owned companies; Cooperatives; Political, mass and social organizations and their companies; Societies and associations constituted in accordance with the requirements established by law; Foundations, understood as the set of assets created as patrimony separated by act of liberality from which it was its owner, to dedicate them to the fulfillment of a certain purpose allowed by the law without profit spirit, and constituted in accordance with the requirements established in the laws; Non-state companies authorized to carry out their activities and; The other entities to which the law confers legal personality.
The concept of legal person is closely related to the determination of the conception of legal personality, given by the fact that man individually cannot always achieve his purposes and decides to associate or join others in order to achieve certain objectives or obtain some benefit, which transcends the possibilities of their individual capacity, in the face of this phenomenon, the Law recognizes legal personality to these groups of people or assets.
Locating with certainty the nature and foundation of this institution has motivated not a few legal scholars and sparked fierce doctrinal discussions, taking into account that positive law is granting legal capacity or personality to entities that are not human beings, by the On the contrary, they are called "collective entities", hence the need to establish their nature, which will have different forms and content, depending on the classification adopted.
The different positions are grouped around two fundamental theories: The theory of fiction and the Theory of the real will, whose main exponents were Carlos Savigny and Otto Gierke. And currently the criminal responsibility of people is based on this last theory.
The historical evolution of this institution is broad, starting from Roman Law, where its existence is questioned, and continues in the Middle Ages, canon law and the thought of various schools of Law such as German, Spanish, and French is contributed. and the Italian.
In the same way, the International Community has dealt with the issue in international events and meetings from 1929 to the present, as well as international organizations such as the Council of Europe and the United Nations, the latter ruled in the Convention against Transnational Crime adopted in December 2000, on the convenience of demanding liability from legal persons, offering different possibilities.
II. Criminal dogmatics facing the challenges of new forms of crime.
It is a controversial issue, since a long time ago, the doctrinal admissibility of a criminal liability of legal persons, societas delinquere non potest or societas delinquere potest, has been the dilemma for which, due to complex historical conditions, legislation and doctrine had to choose.
The Roman principle societas delinquere non potest, seems to continue marking the line of thought to accept or not the responsibility of legal persons and the authors submit to a continuous comparison the characteristics of natural persons and that of legal persons, in order to determine those points in which the possibility of punishable is bankrupt or not, which generally revolve around the capacity of action and possible guilt of the latter, taking into account the elements that make up one or the other, to which are added the problems of the "Subject" and the "legal norm", as a new perspective of discussion and treatment of the problem.
As of the XIX century, the movement of studies around the criminal responsibility of legal persons is resumed, with arguments against and in favor of it.
The most controversial issues are outlined in the following directions:
Existence: for some, the legal person does not exist and therefore cannot be subject to criminal charges; for others, it does exist, as a fiction or as a real person, they have duties and rights, as they are recognized in other branches of law.
The capacity for action: those who consider that the action in the criminal sense can only be carried out by individuals, since human behavior is required (voluntary), and those who, from the utilitarian point of view (and not retributionist) understand that Legal persons such as real ones can also act, and sometimes the criminal legislation itself recognizes the capacity to be passive subjects of crimes.
The capacity of guilt, it is argued that the legal person is not given to the judgment of reproach that is made to the author of the crime; Against it, it is replied that guilt can dispense with the volitional element and only consider that of capacity, which legal persons will have.
The punishable capacity and function of the penalty, it is stated that legal persons cannot suffer the penalties provided for natural persons. On the one hand, the penalties have to correspond to their own event (that of natural persons); On the other hand, if penalties are applied to legal persons, they could not fulfill the functions that the doctrine recognizes them, however, the penalties for legal persons do not have to be the same as those provided for natural persons, but rather other equivalents. In addition, legal persons will be liable for their own act, if they are recognized autonomy and capacity for action and finally, the penalty could fulfill its purposes, understanding that they are based on their own nature.
Political-criminal necessity, on the one hand, it is argued that crimes committed within the framework of legal persons are sufficiently counteracted by civil and administrative measures, for which there would be no political-criminal necessity. On the other hand, this need is considered decisive when civil liability would not be enough because there is public interest and Administrative Law would not be enough, when it is about important legal rights and serious behaviors worthy of punishment, fundamentally in the framework of the growing empire of the companies in commercial traffic and the execution of economic crimes or of a social nature within them, those that need sui generis forms of penalization, for a form of crime that is increasing and different from the traditional one.
In this sense, it also remains an objective data, that regardless of the convenience or not of establishing, a criminal responsibility in charge of the legal person, in most countries, the existence of sanctioning rules that act on the same, regardless of the individual responsibility of those who participate in the wrongful act, even when the idea contrary to corporate punishment is raised as a flag.
Faced with the unquestionable breach of the liability system based strictly on the individual person, there are two options for the systems that try to face this controversy: one, the dogmatic categories are reformulated to make the attribution of responsibility to the legal person legally feasible or the possibility is based to apply consequences that are not strictly criminal or outside the criminal sphere.
At present, a sector of criminal doctrine does not recognize the capacity of criminal responsibility of legal persons, since it is still considered that only the human person is an active subject in Criminal Law, however, the trend today is to seek increasingly effective formulations that allow to "penalize" collective entities and thereby provide responses to the constant violations that they commit and that violate the law and very specifically with elements of the penal system.
The discussion turns towards the perspective of a dogmatic construction of the legal person, because if we continue with the idea of the strict application of the concepts of the natural person, we will find ourselves in a dead end, of turns of concepts and analysis that nothing leads, that is why the analysis is directed towards one:
Legal theory of the crime of Legal Persons
The main aspects of this new dogmatic construction are among other criteria:
- The classic concepts of action and culpability of the natural person are not valid for the legal person, therefore certain rules must be applied that start from the principles of criminal law and its institutions, to support this new conception, and can be used for the action, the general rules of co-authorship and mediate authorship. Legal persons are recipients of legal norms since they can produce the effects required by said norms; It follows that they can be the authors of an offense, that is, that they can carry out actions that are expressed through the actions of their bodies and representatives, but that are at the same time actions of the legal entity,as occurs in the participation of the co-author and the mediate perpetrator who are responsible for their own act even if it is carried out totally or partially through another. In the same way, for the capacity of culpability it is possible to apply the rules of actio liberae in cause and improper crimes of omission, since it is not the biopsychological guilt of the organ, but a guilt of the legal person that has been called guilt due to organizational defect. In this way, the legal person becomes guilty when it fails to adopt the precautionary measures that are required to guarantee an orderly and non-criminal development of the activity related to the company.In the same way, for the capacity of guilt, it is possible to apply the rules of actio liberae in causa and of improper crimes of omission, since it is not the biopsychological guilt of the organ, but a guilt of the legal person that is It has called guilt by organizational defect. In this way, the legal person becomes guilty when it fails to adopt the precautionary measures that are required to guarantee an orderly and non-criminal development of the activity related to the company.In the same way, for the capacity of guilt, it is possible to apply the rules of actio liberae in causa and of improper crimes of omission, since it is not the biopsychological guilt of the organ, but a guilt of the legal person that is It has called guilt by organizational defect. In this way, the legal person becomes guilty when it fails to adopt the precautionary measures that are required to guarantee an orderly and non-criminal development of the activity related to the company.In this way, the legal person becomes guilty when it fails to adopt the precautionary measures that are required to guarantee an orderly and non-criminal development of the activity related to the company.In this way, the legal person becomes guilty when it fails to adopt the precautionary measures that are required to guarantee an orderly and non-criminal development of the activity related to the company.
On the other hand, it is necessary to define which are the criminal offenses that can be attributed to legal persons, and the basic criterion is to consider as such: economic crimes in a general sense, which can include those related to the market and the protection of the consumers; corporate crimes, crimes against natural resources and the environment, money laundering, crimes of illicit association, influence peddling, confiscation of assets and, more recently, crimes related to intellectual and industrial property are included.
III. A look at penology from the perspective of legal persons.
Different models have been projected to penalize legal entities, but all of them depend on the position adopted with respect to the concepts of dogmatics, since the authors who deny the possibility that the legal person has criminal capacity, seek legal mechanisms liability requirement outside the scope of Criminal Law, while others consider that it is possible to attribute the concepts of action and guilt to the legal person, as is done with the natural person and for this reason a system of punishment within the Criminal Law and finally those who consider that there is no doubt that legal persons are criminally responsible and the discussion will only be based on the types of penalties to be imposed.
In order to legitimize the criminal sanction in legal persons, it is necessary to resort to the idea of protection of the legal good, taking into account that the injury to the legal good by a legal person cannot by itself prove the authorship of a certain individual, but rather a ruling in your organization that facilitated the perpetration of the act.
In a methodological order, we present, taking into account the various legal methods that are included in comparative law, the existence of three different ways of demanding responsibility and punishing legal persons, which are the following:
- A "direct own" form, which starts from the recognition of the criminal capacity that legal persons have, which allows them to be prosecuted and punished immediately, without making it conditional on the responsibility of the representative and without further preventing possible prosecution and sanction of the natural person who has participated in criminal activity, thus accepting the old system proposed by Mestre and which led to his distancing from Gierke, who considered that only the sanction of the corporation was enough, however, Mestre conceived a dual system of sanction - natural person, sanction - legal person, examples of this model for more than one hundred years are the Anglo-Saxon Law and more recently the French one. An "indirect" form,model that accepts the requirement of criminal responsibility of legal persons in certain cases, in which the crime of a natural person is also charged, with accessory sanctions for the legal person. For this, it is necessary the recognition of certain presuppositions, fundamentally of imputation criteria that allow such attribution, admitting that of acting in the sphere of the legal person, that the action of the natural person appears in the social context as that of the person legal entity and that of having acted in the name and interest of the legal person, this is mainly referred to by the accessory consequences, which are used in the so-called "action on behalf of another", which we will detail later, taking Spanish law as an example. which he names as accessory consequences,the measures that are imposed on legal persons and that these have the character of security measures. A form called "improper", which allows the economic consequences of the crime committed by a natural person that may well be a fine, or compensation to the injured, are put in charge of a legal person in the name and interest of whoever has acted, so that the legal person would be jointly and severally bound to pay them, although it can repeat against the criminally responsible natural person, an example of this model is Belgian law.are placed in charge of a legal person in the name and interest of whoever has acted, so that the legal person would be jointly and severally bound to pay them, although it can repeat against the criminally responsible natural person, an example of this model is the Belgian legislation.are placed in charge of a legal person in the name and interest of whoever has acted, so that the legal person would be jointly and severally bound to pay them, although it can repeat against the criminally responsible natural person, an example of this model is the Belgian legislation.
IV. Valuation of Decree-Law 175 of 1997.
The fundamentals of the modifications introduced by Decree-Law No. 175 of 1997 were explained in its Por Cuantos in the following terms:
- The effective confrontation of socially dangerous behaviors requires the approval of legal norms that, without ignoring the predominant role of prevention, contribute to supporting the principles and values of Cuban society, proactively ordering, with reasonable and fair criminal sanctions, behaviors that, in a reprehensible way, they can damage those principles and values The reform process that has been developing in the economic, financial and commercial legislation of our country, determines the immediate need to modify some precepts of the Penal Code and to add others, in order to achieve the adequate complement of the objectives sought by these legislative changes,by means of the provision of norms that sanction those illicit that cause or may cause high damages to the correct development of the new relationships established in the aforementioned sphere.
The modifications introduced by this Decree-Law are in my opinion of great importance and they marked a different conception in Cuban Criminal Law by transforming the principle of individual criminal responsibility, by the principle that also admits the criminal responsibility of the legal person and the criminal policy reasons behind them were clear. Since its enactment, a strenuous effort to counteract the occurrence of new forms of crime resulting from the prevailing reality in the country has been appreciated.
The legislation introduced crimes such as: Illegal tax and illegal negotiations, influence peddling and punishable insolvencies, the modification of Chapter VIII of Title V was also very successful, by transforming the name of the crime that until then had been called Deception or damage to the consumer for Infringement of consumer protection regulations, note that it is not a simple change of name, but rather an orientation to the protection of the regulations related to this activity, remember that when carrying out the analysis of the doctrine we leave The idea of the importance of the norm-subject relationship has been established in the attribution of responsibility to the legal person subject.
With Decree-Law No. 175, the concept up to that moment was changed by Law No. 62, which established in some criminal figures as a typical element that the action carried out, was integrated by the affectation of “socialist property assets state or cooperative, or dependencies of political, mass or social organizations ”, a formula used in most of the economic crimes that made up title V and in others as the title for crimes against Patrimonial Rights, where They collect figures such as Fraud and Embezzlement.
The change meant tempering the legislation to the existing economic reality, and terms such as: "private entity", "economic entity of production or services" and "state entity" began to proliferate in the legislation, to overcome the impediment of the regulation that it meant the sole mention of the socialist state enterprise, since it is no longer the only center of imputation of the infraction of the criminal norm, but it should be extended to the sectors that already made up the economic life of the country.
On the other hand, the most important modification that this Decree-Law introduced in the general part of the Penal Code, was related to the consideration of the legal person as subject of Criminal Law together with the natural person, an institution that we will analyze carefully.
V. The responsibility of legal persons from a legislative perspective.
In Cuba, since the repeal of the Code of Social Defense and until the entry into force of Decree-Law No. 175, the controversy about the subject was almost non-existent, however at present there is a growing interest in it, but that goes through Serious obstacles, such as the lack of updated bibliography and an adequate Cuban doctrine according to our concrete reality.
The objective of including a rule that contemplates the criminal liability of legal persons is, firstly, to prevent the benefits or advantages that it can obtain for the commission of a crime carried out in their interest and secondly, that The possibility of imposing a sanction on legal persons is intended to encourage its governing bodies to prevent, within the scope of the company, the commission of infractions, the violation of the duties of employers or that companies enrich themselves through the commission of crimes, always bearing in mind that the purpose of the imposition of a penalty cannot be based on strict criteria of comparison or on the pretense of equating the legal person with the natural person.
Article 16 of the Cuban Penal Code.
Title II of the general part of the Code deals with Criminally Responsible Persons and Chapter I of Age, under whose name the budgets of legal persons are collected. This system does not seem adequate to me, because if what it is about is to establish the existence of criminal responsibility in two different subjects: the natural person and the legal person, that first chapter should have been entirely dedicated only to that formulation and in another chapter establish the foundations of age so as not to mix concepts of both subjects.
Article 16 establishes that:
Section 1: Criminal liability is enforceable against natural persons and legal entities.
Section 2: Criminal liability is enforceable on the natural person from the age of 16 at the time of committing the punishable act.
Section 3: Legal persons are criminally responsible for the crimes provided for in this Code or in special laws, committed within the sphere of action of said legal persons, when they are perpetrated by their representation or by agreement of their associates, without prejudice to individual criminal responsibility incurred by the authors or accomplices in the punishable act.
Section 4: For the purposes of this Code, legal persons are liable for criminal liability in the case of cooperatives, societies and associations constituted in accordance with the requirements established in the laws, foundations, non-state companies authorized to carry out their activities, as well as other non-state entities to which the law confers legal personality.
From the formulation of this article it is clearly deduced that the principle societas delinquere non potest has been completely abandoned and that the principle of individual responsibility that inspired the Criminal Codes of 1979 and 1987 has been totally transformed, to give way to the principle through which legal persons are subjects of Criminal Law, incorporating the formula of natural person-sanction and legal person-sanction.
For the possible imputation of the crime to a legal person, certain assumptions must be met, which cover two fundamental issues; firstly: to whom the criminal law should be addressed and secondly: what are the necessary assumptions of criminal responsibility. We are going to examine them by breaking down the norm established by the Penal Code, for methodological and systematic purposes of the penal norm, we will begin with the second aspect.
The budgets of responsibility; If we decompose article 16 in its section 3, it includes the following assumptions:
- Legal persons are criminally responsible for the crimes provided for in this Code or in special laws, Committed within the sphere of action of said legal persons, When they are perpetrated by their representation or by agreement of their associates, without prejudice to criminal liability individual that the authors or accomplices have incurred in the punishable act.
Legal persons are criminally responsible for the crimes provided for in this Code or in special laws
The requirement of responsibility in terms of the classification of crimes is framed in two possibilities: criminal behaviors that are included in the framework of the Penal Code and those that are established by special laws, which until now have these characteristics, anticipating criminal conduct., between us, Law No. 172 of October 22, 1992 or Electoral Law, which provides in its article 172 conducts harmful to legal assets protected by Criminal Law and Law No. 88 of March 15, 1999, Independence Law national and Cuban economy, which also includes criminal conduct in its formulation and the recent Law 93 Law against acts of Terrorism.
The current conditions of the legal system and Cuban judicial practice, in which, however, the existence of the precept for more than three years, the trial of any specific case has not yet been promoted, among the factors that hinder its application, is precisely in a lack of particular attention to the criminal figures governed in the special part and that for reasons of criminal policy the legislator considered that this institution should be applied at a certain stage, this would allow, at least in a first stage, to call the attention of the operator of the justice system, when faced with one of those figures whose immediate reasoning must be to look for the elements that allow him to attribute responsibility to legal persons.Basically we are referring to behaviors that by their nature have a special possibility of being carried out by collective entities.
The most advanced laws requiring this type of responsibility, such as those of France and Norway, include this model.
Some of the criminal figures that I consider should be anticipated in a first stage, this type of responsibility taking into account the aforementioned foundations are the following:
To be consistent with the responsibility assumed by Decree-Law 175 of 97, the first crimes that we must think about are precisely those that were introduced with this modification, adding others that were already in the criminal legislation and those that were incorporated by the Law 87/99
- Crimes against the Administration and Jurisdiction: Illegal taxation and illicit negotiations, Crimes against Patrimony: Punishable insolvencies, Fraud Crimes against the public Treasury: Tax evasion and money laundering Crimes against public health: Drug trafficking, Pollution of waters and Atmosphere Crimes Against the Economy: Illegal Diffusion and Unauthorized Use of Invention; Violation of consumer protection regulations; Water pollution Crimes against the normal development of sexual relations and against the family, childhood and youth: Pimping and Trafficking in persons Crimes against normal migratory trafficking: Human Trafficking
These are some of the criminal types that I consider that due to their characteristics can be committed by legal persons in our current conditions and the proposal that we present is that in the special part there is a statement or a provision provided at the time of regulating them, with a specific formula that could well be "The legal person responsible for any of these crimes, the following sanctions will be imposed"
Regarding the sanctions, we will make a pronouncement when analyzing this matter.
With this we defend that there is not only a general formula but also a particular one, as is done in the cases, for example, of preparatory acts or other institutions provided for in the general part of the Code and its convenience is indisputable and its adherence to the principle of Legality it's obvious.
Committed within the own sphere of action of said legal persons
There is no doubt that an important budget of this institution is to be able to clearly determine that the event that occurred has violated obligations that are incumbent on the legal person, or have enriched it or could have enriched it.
This means that the violation of obligations must refer to the injury of obligations related to the activity of the company or its specific activity, which implies the existence of a functional relationship between the unlawful act and the obligations of the legal person.
These functional relationship obligations of the entity (to use one of the terms with which the Code affiliates the legal person) are all those that affect the scope of activity of the same and therefore are addressed in the form of mandates or prohibitions to legal persons as recipients of the norm, as well as those prohibitions that in the form of crimes are directed to any subject, this refers to any punishable act emanating from those lawful norms of the activity that the company is obliged to comply with and that may lead to a criminal sanction.
This is a complex budget, it means having sufficient capacity for in the cases in which the legislator establishes in the Code, criminal types of possible imputation to the legal person, or in which a general formula is foreseen, so as not to lose sight This necessary functional relationship is of vital importance, specifying that the obligations arising from such precepts must be related to the activity of the company, regardless of whether we are facing special or proper or improper crimes or criminal types of commission, to be consistent with the statements about guilt mentioned above.
Note that with this, we are not saying, for example, that if a company dedicated to the purchase and sale of dolls, in one of its export contracts, agrees with other businessmen and covertly they agree to the sale of drugs, to In order to increase its funds, the fact cannot be attributed to it because it is not its activity, the reasoning is quite the opposite, it is that the prohibition is established in the fact of hiring only what it was destined for in correspondence with its corporate purpose and if it carries out an activity of this type, there is no doubt that the decision adopted by the body is a punishable act in functional relation to the business activity.
In this valuation budget, another possible criterion to impose a sanction on the company is the existence of an enrichment or a possible enrichment as a result of an unlawful action carried out by some of the people whose actions may trigger criminal liability for them, with This is aimed at confiscating the profits produced by enrichment and at the same time preventing the manipulations of legal persons.
What should be understood by enrichment in these cases? Well, all those patrimonial benefits, that is, any form of enrichment, which allows appreciating an improvement in the patrimony or an increase in its economic value. And this can take place in various ways, say for example a better situation in the market competition with which a benefit is obtained from it.
Regarding this aspect of article 16, we consider that it is well designed, since it pursues that functional relationship when it established the formula "within its own sphere of action", although taking into account the possibility of an enrichment of the legal entity that has become of an increase in assets due to the act of the natural person who, even belonging to the same person, is moved by a personal interest and by accessory increases the assets of the legal person, provided there is a functional relationship, then in that case the formula of article 16 must be increased with the expression, "or get rich", in order to be able to use the confiscation of the assets fundamentally.
When they are perpetrated by its representation or by agreement of its associates
This assumption is related to what is called in the doctrine the "fact of connection" between the action and the subject, since the imposition of a sanction on a legal person presupposes the existence of an unlawful action carried out by some of the natural persons, included within the circle of competent persons, that is, either a management body, or its legal representation, provided that they could make decisive functional decisions, which must be duly established in their statutes and regulations.
The natural person must have acted as the body or competent person of the legal person by their legal representation, with this it is intended to obtain, through the requirement of this imputation requirement, that only the unlawful actions that the competent persons carry out are relevant. in the interest of the legal person, but not those of any worker or worker of the entity, nor those actions that are carried out by a competent member but that have a strictly personal or personal purpose, although here later we will stop at other details.
The doctrine at this point coincides in pointing out that there is action by a competent person, when between the fact of connection and the obligations and duties of the latter there is an objective and internal functional relationship, in my opinion the important thing should be if the author has acted consciously to carry out the action for the legal person, while the mere action in the exercise of the position does not serve to extend the responsibility to the legal person.
One of the biggest problems faced with this budget is that of representation because, as we all know, legal persons, since they do not have a physical existence, have to act through natural persons who represent them and act on their behalf.
In the event that the representative is appointed by an express declaration of the interested party, we are in the presence of a voluntary representation, but if it is the law that determines that one person acts legally instead of another, we are in the presence of a legal representation, such as for example, the one that is conferred by the partners of a public limited company to the President of its Board of Directors to act on behalf of the Company.
The essential legal effect of the representation is that the manifestation of the will issued by the representative within the limits of his powers is effective for or against the represented, as if he himself had acted.
Castan argues that legal persons are not only capable of law but capable of exercising them, but what is debated is whether they act through their representatives or through their own bodies.
The doctrine is not unanimous in considering that representation through legal representatives is a case of true representation. Representation is the execution of a legal act by another, occupying the place of that one, it requires the concurrence of two subjects and two wills, however, none of this happens when it comes to the body of the legal person, even if this is the conception more generalized because it is not that the body (administrator, manager or director) works for the legal person but that this (the legal person) is the one that works through it.
Professor Vicente Rapa, considers that legal persons can act through representatives, to whom the representation of those is conferred, or by their own bodies or bodies whose will is equal to the will of the person himself, when issued with according to the corresponding legal or statutory provisions, criteria to which I join.
The action by means of representatives in our legal system is governed by the provisions of the Civil Code on representation in general and its effects in relation to the represented party, while action by its own bodies, in an analogous way, is governed by the principle that the acts carried out by them oblige people.
The ordinary thing is that, in the deed of incorporation of a legal person of any kind, the powers that correspond to each partner and the people who with the character and title of President, Treasurer and Secretary can represent them in their acts are stated, treating of companies or legal persons of a commercial nature, the right of representation is governed by different norms according to the class or type of Company, as well as in the case of foundations, the capacity to act exercised by its representative bodies must be determined at each opportunity, designated according to the rules of the founding deed.
As we have seen, the criminal legislation makes express mention of representation as an element to take into account when attributing responsibility to the legal person, but does not make any precision on what criterion to accept on it, so we infer that they have present in a supplementary way the foundations provided by civil law for this.
On the other hand, we argued throughout the theoretical foundation of the institution, that the same to acquire reality in the Law, the organicist theory had been based by which it is this who has the body and soul of the legal person. This theory is widely applicable in all doctrinal constructions that protect the existence of the legal entity in the Penal Code and Cuba of course does not escape it, however, it is curious that article 16 does not mention the body but rather the representation and the "agreement of its partners". Regarding this last approach, we disagree when considering that the express mention that must be made must be the competent body through which the legal person acts and that adopts different forms in its conformation according to the type of legal person and its statutes and regulations.
In this matter, it is impossible to ignore at present the role of the "competent body", and its impact on the life of these entities, since without them they would not exist, and the theories around it and the need for it are being further perfected. that they have a transparent activity in their performance, note only what the theory of the lifting of the veil means in Civil Law, by means of which it tries to prevent the body of the legal entity from hiding after the same certain activities that directly they may be proving beneficial for its members in particular and with this theory, the possibility of searching behind the assets of the legal entity and investigating that of each of its members is allowed.
There is no doubt that this is one of the most complex assumptions in which it is necessary not only knowledge in criminal matters, but also to link it to Civil Law and Commercial Law in order to be able to make the search for the individual subject effective. physical, which formally committed the act that is going to be attributed to the legal entity, hence the link between the fact of connection that we saw earlier and the functional relationship of the legal entity.
When we refer to the actions being carried out by a competent member but having a strictly personal or personal purpose, it must be borne in mind if this has violated the duty that was incumbent on him in the entity as a competent person and if in In this case, the relationship is direct, so it will also affect the legal person that could be penalized, by this we mean that not every unlawful action carried out for their own benefit by the member of a company body leads directly to the exclusion of criminal responsibility of the same, but those that do not affect its scope of obligation in direct relation to the duty of the body.
Without prejudice to the individual criminal responsibility incurred by the authors or accomplices in the punishable act.
This last budget is clear and it is a matter of defining whether the legislation applies to the model of single demand for the legal person, as Gierke wanted at the time, or the model that encourages the application of sanctions to the legal person and the natural person.
The conception of our precept affiliates us to the proper form in which the possible demand of responsibility is foreseen to the legal person without excluding the one that can be attributed to the natural person acting in it, based on this assessment in the doctrine raised in his day by Aquiles Mestre and more recently the French Code, according to which, as we recall, criminal responsibility is enforceable against legal entities and does not exclude that of the physical authors or accomplices of the fact that occurred, although it is appreciated in comparative law that the The most commonly used term is that of participant in substitution of a natural person, but we adhere to the terms of authors and accomplices adopted by the Cuban Code.
Having analyzed the necessary assumptions to demand the responsibility determined by the doctrine and positive law, let us stop even briefly on the first aspect that we pointed out when beginning the study of the elements for the attribution of responsibility to legal persons, to whom is the criminal law ?, that someone could seem very simple his answer because it is logical that to the "legal person", but it will be to all legal persons ?, Here the analysis focuses on section 4 of article 16.
The adduced precept requires recourse to article 39 of the Civil Code, which we already analyzed in the first chapter, but that in criminal matters, the law does not address all legal persons that the aforementioned article of civil law provides in its subsection 2, but rather a selection method is used that determines the possible liability requirement in the cases of subsections b) cooperatives, c) companies and associations constituted in accordance with the requirements established by law, d) foundations, and) non-state companies authorized to carry out their activities and f) other entities to which the law confers legal personality; In other words, here we are dealing with different types of legal persons;This creates the complex situation of having to resort to various legal systems to clearly determine which type we are facing, although for the specific case it would only be enough to resort to the charter and determine its character and type.
The constitution system of the different legal persons varies according to their type and this is the object of specific study of Civil Law and Commercial Law, where the concepts, structures and presuppositions of each of them are analyzed, in the case of this investigation it is It is important in our opinion to define that not all legal persons are possible subjects of imputation of the criminal law, but only a certain number of them, which the legislator defined exhaustively, therefore once the criminal offense has occurred, it is obliged to contact other rules outside the criminal sphere, to establish, before which legal person we are and given its composition and structure define, if it is possible that the regulations of Criminal Law, reach them.
As the legal entity becomes a subject of criminal law, it is not enough to declare the existence of responsibility for it, but it is necessary to develop the set of institutions that serve or make possible the requirement of this criminal responsibility.
For the purposes of this study, we will analyze: a) The purposes of the sanction, b) the applicable sanctions system, and c) the adequacy of the sanction.
a) The purposes of the sanction
That the sanctioning treatment of legal persons is a necessity, and that is not the subject of controversy in this work and therefore we must keep in mind some ideas: the punishment of the individual perpetrator follows the line marked by the validity of the principles of individual guilt, personality of the penalties and others already analyzed; While the models for the psychological-collective explanation of group crime, understood as corporate crime, require a different type of sanction, the purposes of sanctions against legal persons have a different sense of assessment than the purposes of the subject's sanction. individual.
In this sense, the formulation of article 27 of the Penal Code is not adequate for the legal person subject, the Cuban criminal doctrine has always valued the existence of three purposes in this precept: the repressive, the reeducational and the preventive in their variants of prevention general and special prevention, which, given the nature of the subject studied here, cannot have the same evaluation criteria.
Note that here too, as in the individual subject, the relationship between the principle of guilt and the individuality of the penalty must be fulfilled, the sanction to be imposed must be in the same degree and measure of the guilt of the subject and the subject treated here has a Own form of guilt linked to guilt due to organizational failure, which is given in not having done everything essential to comply with the norm in the terms provided and therefore a penalty appropriate to the need of the State to protect to the society of these behaviors, in the sense of the utilitarian function that also has the penalty.
The penalty is, following this line of thought, the need to "exercise" the recognition of the norm and fidelity to the Law by all the subjects that are present in society, that is, it serves to exercise trust towards the norm, This is not aimed at considering that this makes the subjects desist from the infraction of the norm or that it stops their future behavior, but rather to convince themselves that the fact of their interaction in society forces them to respect the norms and to know what What is expected of them if they violate them.
In another sense, a group of authors see in Criminal Law and consequently in the use of the penalty a preventive but also utilitarian purpose that serves to carry out certain purposes of the State, fundamentally the protection of society against seriously damaging conduct For its normal functioning, it is what has been called "functionalist" ideas that can also be used as a basis for punishment in this matter.
b) The system of sanctions in the Penal Code
The Penal Code dedicates Title II of the General Part to sanctions and Chapter II establishes the kinds of sanctions that are imposed on natural persons and legal entities, defining that these can be: main and accessory for both subjects.
Article 28 in paragraph 4 establishes that the main sanctions applicable to legal persons are:
- Dissolution, temporary closure, with a term that cannot be less than three months or exceed two years Temporary or permanent prohibition of the license for certain activities or businesses, whose terms establish that it cannot be less than six months nor exceed three years when it is temporary.
The dissolution of the legal entity is undoubtedly the most serious sanction that can be imposed, since it involves the so-called "civil death" of the same, has a diminutive character and means the extinction of its personality, therefore when decrees must proceed to its liquidation in accordance with civil, administrative and tax laws and the provisions of its statutes, also complying with the formalities of the registration of the dissolution and publication, as appropriate.
The temporary closure of the company, its premises or establishments, is equivalent to the closure but does not imply its dissolution and this must be based essentially on the verification of the concrete danger posed by the continuity of the company's activity for some time.
The temporary or permanent prohibition of the license for certain activities or businesses, is related to the activity or activities, developed within these legal entities and it must always be specified which specific activity is the one that is prohibited from carrying out, and note that they have It must be of such a content that its application does not automatically imply the impossibility of carrying out its essential activities, because it would be becoming a closure and here the question is to prohibit some activities but allow the legal entity to continue its operation.
The fine has been one of the most used sanctions for legal persons, given that its nature conforms to their character and because, in addition, an adequate use of them, can really be exemplary for the subject and for other legal persons, however If this does not have sufficient quantitative entity, it will lack dissuasive effectiveness, and it can even be reversed in the taxpayers of the legal person or in those to whom the activity of the same is intended.
Note that we are in the presence of a sanction similar in nature to the temporary prohibition to carry out certain activities, but it expands its content, to the prohibition of carrying out commercial operations or businesses in whose exercise the crime has been committed, favored or concealed, but its deference Fundamental lies in the fact that the first refers to the activities of the legal entity and this should logically be interpreted as suspending part of the activities that it was carrying out, since the Code does not specify its scope and it does not establish a direct relationship, as in the second case of the prohibition, between the exercise of a certain activity and the crime committed. However, it is obvious that the suspension of activities has a broader content,since activities can be suspended, although in the specific development of some of them the crime would not have been carried out, nor had it been favored or concealed, provided that whoever applies it understands that this is necessary to avoid criminal continuity and its effects.
On the other hand, we wanted to stop, in the same way, in the analysis of this precept in its section 5, in which rules are provided for the determination of the main sanctions, whose design was presented in a direct relationship between the amount of the sanction provided for the specific crime (once the act has been committed) applicable to the natural person and its correspondence in the same sense with that of the legal person.
There is no doubt that in the doctrine it is considered that the standard penalty can have different modalities, since due to the unity or diversity of punishments that comprise it, it can be made up of several assumptions, such as: a) penalty only this is a single punishment, eg, fines, b) disjunctive penalties, that is, one or another of those provided for, for the particular crime, eg., imprisonment, fines and c) joint penalties, or what is the same different penalties that can be imposed jointly, eg imprisonment, fines or both; but at the time of individualizing the specific penalty, the judicial operator must find sufficient freedom to take into account the gravity of the fact and the concurrent circumstances impose the most appropriate, with the sole purpose of having the opportunity to make use of an adequate Judicial Arbitration.
The precept was raised in the following terms, for the determination of the main sanctions to legal persons it is necessary to take into account the following rules:
In the case of an offense that has the sanction of a fine foreseen, it shall be applied within the minimum and maximum limits of quotas established for the corresponding offense, but taking into consideration the provisions of section 7, subsection a), of article 35 Regarding the amount of each installment:
- In the case of a crime that has a sanction of deprivation of liberty that does not exceed three years, this will be understood as replaced by the temporary or permanent prohibition of the license for certain activities or businesses; In the case of a crime that has a planned A penalty of deprivation of liberty exceeding three years and not exceeding twelve, this will be understood to be replaced by temporary closure; In other cases, the applicable penalty will be dissolution; In the case of a crime that is planned, alternatively or jointly, two classes of main sanctions, these will be understood respectively replaced by those corresponding to legal entities, according to the rules established in the previous paragraphs.
In a system of law like ours in which the principles of law and respect for them are fundamental in terms of the natural person, faced with the challenge of facing the criminalization of legal persons, they must do so while preserving those same principles in order to avoid possible injustices in its application.
Finally, the legislation also includes accessory sanctions, such as forfeiture and confiscation of property, which although in the purchased law we observe that some laws establish them as main sanctions to us, the system of Cuban positive law seems adequate, since, gives the possibility that together with the main sanction that is imposed, an accessory is also used to complement it, in cases where it is necessary and useful.
The adequacy of the sanction and article 47 of the Penal Code: Here we present a problem similar to the one analyzed when we saw article 27, we are faced with a sui generis subject, to whom all the fundamentals of the natural person cannot be categorically applied.
For the adequacy of the sanction, it is necessary to bear in mind the requirement of a set of guaranteeing principles of Criminal Law, which we cannot renounce if we are saying that the legal person must submit from the bases of a new perspective to the principles of the latter. branch of law, therefore in the application of sanctions it is essential to adhere, among others, to the principles of proportionality and individualization of the penalty.
The first is, that of proportionality is inherent to any sanctioning system, understood in two aspects: on the one hand, the penalty must be necessary and on the other it must be infallible.
The idea of necessary penalty indicates that the sanction cannot go beyond what is necessary to fulfill a certain purpose and when pointing out the proportionality that infallibility must also ensure, we are referring to the fact that at the time of the execution must ensure that the penalties imposed are met and in the institution that we are addressing these two aspects are transcendental for the effectiveness of the sanction imposed.
These are the main points of view, which, regarding the substantive matter, it seemed appropriate to submit to analysis in the Cuban criminal law, regarding the institution of the legal entity, arriving at the following:
Conclusions
- That the terms set forth in Article 27 of the Penal Code regarding the purposes of the sanction are not valid for legal persons. That the sanctions provided by Cuban law to hold legal persons accountable is not effective enough and should be extended to seek a greater scope of possibilities that prevent the carrying out of commercial activities and operations of a temporary or definitive nature. That section 5 of article 28 is limiting of that possibility of adequate judicial discretion and "ties" the judging body to pre-ordered penalties without Many possibilities of movement for a just adaptation of the sanction. That there is no specific or effective article in the Penal Code to adapt the sanctions with respect to legal persons.
Bibliography
- Law No. 62 of 1987: Penal Code Agreed and updated Comments: MsC. Arnel Medina Cuenca, professor and Dr. Mayda Goite Pierre, professor. Criminal Law Manual Volume I, Renén Quirós Pírez. Edited by Editorial Félix Varela, Havana, 2005. Manual of Criminal Law Volume II, Renén Quirós Pírez. Edited by Editorial Félix Varela, La Habana, 2005 Comments on the Penal Code, cit., Tl, pp. 226 and ss. Authors' Collective: AOS Textbooks. Volume I to IV. Edited by ISMI, “Capitán San Luís, La Habana, 1985. Decree-Law No. 175 of June 17, 1997.
