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Do legal entities need criminal liability??

Do legal entities need criminal liability??

At the SPBILF experts discussed prospects for the introduction of criminal liability for business

One of the participants in the discussion expressed the opinion, that criminal liability for legal entities should be introduced, but only for corporations. Others considered, that this will put additional pressure on the business, therefore, it is necessary to act within the framework of existing legislation.
Within the framework of the XI St. Petersburg International Legal Forum, a session was held on the topic “Criminal liability of legal entities: problems and prospects», which was moderated by Sergey Olennikov, Head of the Department of Criminal Law of the Law Faculty of St. Petersburg State University. He reminded, that the question of the liability of legal persons has been an acute problem since the reform of the 1990s. Then there were supporters, and opponents of such measures. Since society's attention has been turned to the environment, supporters justified the expediency of introducing the institution of liability of legal entities by imposing sanctions for harm caused. It was supposed, that the basis for criminal liability would be an act guilty in the interests of a legal entity. Sanctions - fines, confiscation of property (when confiscation was a separate punishment), a ban on certain activities. Opponents pointed out, what is this act, which is in consciousness and will, and this is human.

Alexander Bastrykin, Chairman of the SC of the Russian Federation, noted, that 10–12 years ago, a working group was created in the State Duma to introduce the liability of legal entities and the document was almost adopted in the first reading, but in the end it was never accepted.. He paid attention, that the stay of convicts in places of deprivation of liberty is very expensive - these are billions. Alexander Bastrykin pointed out, more 80 countries use the institution of criminal liability of legal entities, for example Spain, France, Czech Republic, Germany. In his opinion, if European countries have long included legal entities in criminal liability, then you can analyze and adopt a law of the same direction. Speaker believes, that, if the board of the society voted for a fraudulent scheme, no need to send all managers to the colony - it's expensive, a legal entity can be prosecuted, what is now implemented only at the level of the Code of Administrative Offenses.

Vladimir Pligin, co-chairman of the Russian Bar Association, noted, need to be careful with terminology, which we are trying to use. It is necessary to understand the emotional content of the words "criminal responsibility" in relation to the Russian situation, he remarked. According to the speaker, when it comes to the criminal liability of legal entities, then you have to decide, what exactly - corporations or other. He explained, that Western legislation is anti-industry, and it's aimed at corporations. And in Russia it is small and medium business, and, before supplementing the liability of legal entities with the word "criminal", understand social responsibility.

Vladimir Pligin spoke about three possible concepts. In the first, the classical subject is a legal entity, but a legal entity is a continuation of the “I” of an individual. “If we talk about the subject of a legal entity, what is it: IE, small, medium business or corporation?"- asked the speaker. He added, what if we talk about the word "subject", then you have to return to consciousness and so on, if we exclude this word and move to the proposal of the professor of St. Petersburg State University and the Institute of the Prosecutor's Office Boris Volzhenkin, it is necessary to distinguish between the subject of a crime and the subject of criminal liability.

The second option is the introduction of such sanctions in the Code of Administrative Offenses when forming its new concept., which will lead to the liquidation of the legal entity. Institute of Administrative Responsibility, which has developed for today, worth adding, without introducing the institution of criminal liability, believes Vladimir Pligin. The third concept is the initiation of a criminal case, but with the use of administrative responsibility.

Director of the Chinese-Russian Center for Comparative Law of Henan University Pan Dongmei told, that earlier, in the Criminal Code of China 1979 Mr., corporate crimes were not fixed, however, in the new edition of the Code 1997 y. responsible for this. Corporate crimes differ from the crimes of natural persons not only by the subject, but also the composition, at the same time, the concept of a corporation in China is wider than the concept of a legal entity, he explained. Most public organizations, who are also liable under the Criminal Code, does not have the status of a legal entity.

In China, there is no clear regulation of the form of guilt - the criminal form of guilt is the fault of the organization as a whole. Misappropriation of material goods for an organization is different from the crime of an individual, if officials use the organization's name to commit a crime. If a corporate crime is committed through negligence, responsible person of the organization, and not an organization itself. At the same time, corporate crimes include two points: they can be committed by decision of the managing director of the organization, that is, those, who decides, such as the board of directors, or can be committed by decision of the head of the organization, i.e. the legal representative of the company. The punishment can also be either double, when a corporation is punished, responsible persons, or someone is punished. There are mixed corporate crimes, when the subject can be as an organization, as well as an individual. At the same time, designs, pertaining to individuals, can apply to organizations, said Pang Dongmei.

Member of the General Council, Head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of the All-Russian Public Organization "Business Russia", ambassador “business officer” Ekaterina Avdeeva noticed, what st. 76.1 The Criminal Code of the Russian Federation "Exemption from criminal liability in connection with compensation for damage" provides for the possibility of exemption from punishment upon payment of twice the amount of compensation, that, Maybe, more appropriate. If the actions are illegal and committed collectively, then fair, if there was no distribution of funds, to be compensated by the corporation, she thinks.

Today, when new trends in economic reality emerged, trends, related to the development of technologies, and cybercrime is on the rise, AI is developing, who will make decisions, including criminal, the question of an integrated approach to criminal law policy is ripe, considered by Ekaterina Avdeeva. In her opinion, the issue of liability of legal entities should be worked out in detail, so that there is no negative impact on the business. Important, to apply economic sanctions.

Ekaterina Avdeeva noticed, that the criminal law sphere is being exploited with the aim, among other things, to take away business, and, if the legal entity is liable, business will no longer be as attractive. Also, criminal liability is used to eliminate competitors.. According to the speaker, the issue should be worked out from the point of view of the balance of private and public interests and forecasts, since changes to the Criminal Code are made without calculating the economic and other consequences.

Vadim Zaripov, Head of Analytical Service at Pepeliaev Group, asked a question, who to hold accountable, after all, the legal entity is a fiction, and one-day firms are a fiction squared, and the tax authorities know, that it makes no sense to check them, because there is no one to look for. In his opinion, criminal prosecution is the last resort to protect the public interest, when there are not enough civil-legal and administrative-legal means.

He counted, that representatives of regulatory and supervisory authorities - the Federal Tax Service or Rosprirodnazor should speak about the insufficiency of measures to combat negative phenomena. Today, the tax authorities are conducting a full-fledged tax investigation, using all its attributes, such as interrogations, inspections, expertise, and that's enough, says Vadim Zaripov. In his opinion, the potential for administrative responsibility has not been exhausted, she is now quasi-criminal, because it provides for severe sanctions. Customs violation leads to a 200% fine and confiscation of property, currency violations - 20–40% of the fine from a currency transaction.

Vadim Zaripov noted, that since last year the investigation has been working on the materials of the tax authorities, but his task is different - the fight against crime. He pointed, that the legislation provides for compensation for damages in a civil procedure, collection of environmental fines, but these are punitive taxes, which, in his opinion, law enforcement agencies should not. In conclusion, the speaker pointed out, that, according to Art.. 51 Constitution, restrictions must be proportionate. Given the current state of the judicial and law enforcement systems, the introduction of criminal liability for legal entities is a threat to the economic security of the country.

 

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