PROSECUTION AND THE SUPREME COURT HOLD have chosen CRIMINAL LIABILITY OF LEGAL PERSON BASED ON TWO DIFFERENT MODELS
The attribution of criminal responsibility to legal persons in accordance with Article 31a of the Penal Code carries a would be procedural and criminal consequences for societies and therefore requires to be grounded in accordance with the rules governing our criminal justice system. In this respect, the Circular 1/2016 of the Attorney General’s Office based the criminal liability of the legal person based on two models.
1) System vicarious liability, depending on which criminal liability is attributed to the legal person because of prior criminal conduct of an individual, provided there is a fact of connection between individual and legal.
2) guilt System default organization, under which the legal person becomes criminally responsible for some criminal acts when it has broken the duties of supervision, monitoring and control, away from the demands of good corporate citizen.
Opting for one or another system attribution of criminal responsibility is paramount. If we rely on a system of vicarious liability, the prosecution must prove in court that the offense has been committed by the individual and that it has a connection to the legal entity that allows the attribution of responsibility, corresponding to the defense (on the entity) show that in the specific case has complied with proper control exonerate him of responsibility. Otherwise, on the model of “self-reliance”, the prosecution must prove not only the crime and the relationship of the individual author with the legal person responsible but also that the company has breached its duties of supervision, monitoring and control .
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