Authorship and participation in the criminal liability of a legal entity

Abstract

The corporate criminal liability, based on the principle of accountability for one’s own actions or self-responsibility, requires the fulfillment of a prerequisite: the commission of a crime explicitly listed in the Penal Code as susceptible to causing criminal liability for the legal entity due to the actions of the natural persons mentioned in Article 31 bis of the Penal Code; and a basis: the failure to exercise proper control by the legal entity, either due to the absence of a crime prevention program or due to the existence of an ineffective program given the circumstances of the case. Thus, the concept of the perpetrator of a corporate crime has a dual aspect: on the one hand, the natural person who commits the criminal act (the prerequisite for corporate crime) and, on the other hand, the legal entity that fails to exercise proper control (the basis).
In accordance with this configuration and considering the principle of legality as established by Articles 9 and 25 of the Spanish Constitution, in relation to Article 31 bis of the Penal Code, there is no corporate crime (due to lack of typicity) when any of the natural persons referred to in the aforementioned legal provision participates as an instigator, necessary collaborator, or accessory in the crime of a third party. In contrast, it is perfectly possible for a third party (as an instigator, necessary collaborator, or accessory) to participate in the crime of a legal entity, based on the general rules of participation established in Articles 28 and 29 of the Penal Code.