2019

DOI:https://www.doi.org/10.31178/AUBD.2019.14

Abstract:Thisarticle aims to examine how the subjective link is formed between legal entities and natural persons acting in the interest of, on behalf of, or in the name of those legal entities. The analysis is based on a classification of natural persons who can give rise to the criminal liability of a legal entity, namely decision-makers and executors. Decision-makers are the individuals who set the direction and shape the will of the legal entity, while executors are individuals who lack decision-making authority but whose actions are capable of giving rise to criminal liability on the part of the legal entity.

In addition, another distinction upon which the analysis is structured is that between the subjective stage and the objective stage in which the legal entity’s guilt and criminal liability take shape. Based on these distinctions, a structured analysis is conducted to examine the interactions between natural and legal persons, identify issues, and, in some cases, propose solutions regarding the forms of culpability and participation that may be relevant.

Finally, a general regulatory proposal is included regarding the issue of criminal liability of legal entities, but only as a subsequent step following the development of case law on the matter—in which the form of participation by legal entities convicted of committing crimes would also be analyzed—as well as following an extensive doctrinal analysis of the specific issues surrounding the dynamics of the relationship between natural persons and legal entities from a criminal law perspective.

Keywords:legal entity, criminal liability of legal entities, criminal participation, subjective link, forms of participation, perpetrator, decision-maker, culpability of legal entities