Review article
Criminal liability of legal persons in the system of general legal theory and considerations of Alschuler's theory
Vanja-Ivan Savić
; Faculty of law, University of Zagreb, Zagreb, Croatia
Abstract
Criminal liability of legal persons is one of the most demanding legal constructs in contemporary legal systems. With the abandoning of the societas delinquere non potest principle, legal persons gain a specific capacity to commit an offense, which extends the concept of this capacity beyond its scope previously known in law. The paper analyses the social and legal relations which justify the existence of this liability and explains why it is necessary to include this type of liability in the instruction on legal systems. The author points to relevant texts by foreign authors dealing with this matter, and analyses the position of the instruction on legal persons on the one hand, and on the capacity to commit an offense on the other, as carried out by our legal scholars. In addition, the author singles out the work of the well-known American legal scholar Albert Alschuler, who criticises the existence of criminal liability of legal persons and links it to the deodand and frankpledge principles. The former pertains to the punishment of animals on the talion principle, actually diminishing the value of the offender. The latter is based on the principle of punishing the group for the misconduct of an individual, which he links to collective punishment justified by a lack of supervision. Although worthy of attention, Alschuler’s theory is not acceptable as it fails to provide a legal alternative to criminal liability of legal persons, considering their importance for the society and the numerous interactions entered into by legal persons in the modern world. The real solution can be found by finding an appropriate place for criminal liability of legal persons in the legal system, and by advocating its recognition while clearly defining mechanisms for establishing such liability, punishing primarily those with the greatest responsibility and developing systems to protect collateral victims. The intention of this paper is to serve as a starting point for any serious endeavour into this problem.
Keywords
legal persons; criminal liability; general legal theory; legal system; Alschuler’s theory
Hrčak ID:
75510
URI
Publication date:
20.12.2011.
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