The origins of criminal liability of legal persons - a comparative perspective

• Author: Magdalena Catargiu
• Position: Faculty of Law University, Iasi - Romania
• Pages: 26-30

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 3 (2013), pp. 26-30

26

THE ORIGINS OF CRIMINAL LIABILITY OF LEGAL PERSONS –

A COMPARATIVE PERSPECTIVE

M. Catargiu

Magdalena Catargiu

Faculty of Law

“Alexandru Ioan Cuza” University, Iai, Romania

*Correspondence: Magdalena Catargiu, “Alexandru Ioan Cuza” University, 11 Boulevard

Carol I, 700506, Iai, Romania

E-mail: m_catargiu@yahoo.com

Abstract

The criminal liability of legal persons is an intrinsic reality of everyday life. However,

this particular institution had a rather tumultuous evolution which is essential in

understanding its organic mechanisms.

Through this study we aim to analyze the concept of criminal liability of the legal

person from both diachronic and comparative perspective in order to determine the role of

this fiction in contemporary legal systems. We shall focus on the legal framework in both

European and Anglo-American systems. We also intend to identify the factors that have led to

the consecration of criminal liability.

Keywords: legal personal, criminal liability, European regulations, Anglo-American

legal system.

Introduction

In order to understand the inner mechanisms of the legal person, it is essential to

analyze it both from the perspective of public law and of private law, as well.

One of the most controversial aspect regarding the criminal law institution is,

undoubtedly, the liability of the entities. We perceive it in the same natural manner as the

liability of individuals, neglecting, unfortunately, aspects of great importance that contribute

to the configuration of legal entities as we known them today.

Romans were very attached to the idea that the legal person is very similar to the

natural person. However, the legal person could not be held criminal responsible, fact

enshrined also by the adagio societas delinquere non potest. Thus, Ulpian specifies that a

municipium cannot be responsible for dolus, since it is a legal person

1

, i.e. a fictive entity.

After all, the legal persons were the product of fiction, being actually nothing more than a

legal metaphor.

However, some authors, especially Archille Mestre, asserted that the Romans

considered legal persons capable of committing offenses and, in consequence, they could be

punished. In support of its sentences, the author gives the example of the town Cheronea,

against whom a criminal legal action had been formulated. This would lead to the idea that in

Roman law, the criminal liability of legal persons was recognized

2

. In fact, some of the

residents of the town, without the entire community being involved, killed Roman citizens.

After trial, Cheronea had been exonerated.

In the Middle Ages, the liability of legal person remained a controversial matter. The

general tendency has been to accept that legal person may also be criminal responsible. In the

1

F. Streteanu, R. Chiri, Rspunderea penal a persoanei juridice, C. H. Beck P ublishing House, Bucharest,

2007, p. 4.

2

F. Streteanu, R. Chiri, op. cit., p. 5.