Towards the issue of criminal liability of legal person

Abstract

The article deals with the criminal liability of legal persons. On the basis of the criminal law of foreign countries, assessment of the implementation of the provisions of Chapter XIV-1 of the Criminal Code we make proposals regarding changes in approaches to the recognition of the legal person as a subject of a crime, both in its criminal and legal status, and in respect with a number of acts of its officers commitment of which indicates that it is possible to consider a legal person as a subject of crime. The changes to the list of criminal responsibilities that can be applied to an entity are offered.

It had come some period of time from the moment when the Criminal Code of Ukraine had been supplemented with the Chapter ХІV-1 “The Measures of Criminal-Law Character Concerning to Legal Persons” and now we have possibility to make some previous conclusions about advisability of implementation of it into legislation for criminal responsibility. We are able also to suggest proposals for future development of the criminal responsibility of legal person in our country.

We should admit that this problem belongs to one of the most difficult. It provokes discussions among scientists in Ukraine as well as abroad for many years.

Nobody has doubt that legal person is the subject of law. It is a truth universally acknowledged. Meanwhile various science theories explain criminal responsibility of legal person differently. Among them let us remember the fiction theory or the theory of fiction of juridical person (Friedrich Carl von Savigny), the theory of special purpose asset  (Alois Ritter von Brinz), the realistic theory (Raymond Saleilles), the theory of interest (Rudolf von Jhering),  the theory of collectivity (Anatoliy Venedictov),  the theory of chief (Yuriy Tolstoy). Nevertheless only few of these theories directly reveal the basis of criminal responsibility, however they could at the same time create the foundation for other kinds of legal responsibility.

The existing world legal systems have different determinations of criminal responsibility for legal persons. The legal systems have the best development in countries of common law, especially in USA.

The famous example of proceedings for criminal responsibility of corporation recently (2006) was the case of nationally famous law firm Milberg Weiss Bershad Hynes & Lerach and its senior partners (D. J. Bershad and S. G. Schulman). The law firm Milberg Weiss was established in 1965, based in New York City and with offices in Los Angeles, Washington and other two cities. The collective had counted 125 lawyers and 240 members of staff for that moment. The firm was among the pioneer of supporting the legal assistance for class actions. The lawyers were accused in bribery payment for some persons, who became plaintiffs in multimillion class actions. The public prosecution demanded of returning of 216 millions of dollars spent for lawyers’ honorarium. The claim was satisfied as it mentioned.