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The criminal responsibility of companies is an increasingly important topic in modern criminal law. In the past, companies could not be held responsible for committing crimes, as it was considered that only individuals could be held responsible. However, this has changed in many jurisdictions, including the European Union and the United States, where laws have been implemented that allow companies to be penalized for their criminal actions.
This change in the law has been motivated largely by corporate scandals that have come to light in recent decades, in which large companies have been responsible for financial crimes, corruption, and other serious crimes. These cases have shown that the lack of criminal responsibility for companies can lead to a culture of impunity and corruption that undermines trust in justice and the rule of law.
In the case of Spain, the model of legal entity responsibility is based on the idea of self-responsibility, which means that the company is responsible for its own crime, whether it is an act or omission, and is distinct from individual crime. This means that if a company commits a crime, it is the company itself that must be penalized, not just the individuals who committed the crime.
In order for a company to be considered responsible for a crime, it must be shown that the way the entity was organized or structured favored the commission of the crime. That is, it must be demonstrated that the company knew that crimes were being committed and did nothing to stop them. In addition, it is required that the crime was committed in the course and development of the company's activities, for the direct or indirect benefit of the company.
The legal entity is penalized because as an organization, it allowed its members to commit crimes on its behalf.
The wrongdoing is being poorly organized (not having a reasonable compliance program), so that lack of proper control must be proven by the prosecution. It is not enough to presume the legal entity's crime just because an individual crime has been established.
Unlike individuals, who are evaluated based on the specific act, legal entities are evaluated based on their culture and compliance history, so the model is based on virtue. To exempt criminal responsibility, the legal entity must cooperate (ex-ante duty of care) and assist in the investigation (ex-post).
In cases of transformation, merger, spin-off, and absorption of companies, they may inherit the pre-existing criminal responsibility if fraudulent intent is proven, so it is recommended that investigations into possible previous liability be carried out before undertaking these operations (art. 130 CP).
In summary, the criminal responsibility of companies is an important topic that takes into account the organization and behavior of companies. If a company commits a crime, it may face legal consequences, but if it can be demonstrated that preventive measures have been taken to avoid the crime, the company may be exempt from responsibility. It is important for companies to cooperate in investigations and to conduct prior investigations before undertaking operations that may inherit criminal responsibility.
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