Although this figure has been introduced several years ago, there are still people who are unaware that a legal entity may be criminally liable.
Companies may be criminally liable for crimes committed by their administrators or directors, or also for crimes committed by their employees in the event that the directors have breached their duties of supervision, control and oversight. The legal entity is not criminally liable for all crimes, but only for those provided for in the Criminal Code, and its liability will always be independent from that of the specific individual who commits the acts.
For example, the most frequent crimes for which a legal entity may be criminally liable are: crimes against the Public Treasury and Social Security, fraud in subsidies and public aid, embezzlement and corruption, money laundering, sexual harassment, human trafficking, drug trafficking, etc.
This criminal liability of companies may be due to the difficulty that the public authorities may have in investigating criminal acts committed within a company. Therefore, the responsibility of surveillance, control and supervision is transferred to the companies on the facts that take place within them, and they have the obligation to prevent the commission of crimes.
That is why it is so important to have a corporate compliance program that regulates the company’s rules, procedures and internal controls to ensure that it complies with the law, prevents crimes and avoids penalties and legal liabilities.
There is no universal model for a corporate compliance program, but rather programs that must be tailor-made for each company, taking into account the business activity, the risks inherent to such activity, the network of employees, etc.
The most important things that a compliance program should contain are the identification of business risks, the creation of a code of conduct, internal protocols for action, the creation or designation of a committee responsible for monitoring, control and supervision, the creation of an internal whistleblower channel to ensure whistleblower protection, the provision of training for managers and employees on the rules, the establishment of internal sanctions or disciplinary measures, and also the performance of internal reviews or audits to detect failures and be able to improve the program. Having a corporate compliance program is essential for the proper functioning of the company, but also to avoid criminal or administrative sanctions, to protect the company’s reputation, to generate confidence in customers, etc. In addition, in relation to the criminal liability of the company, it is crucial to have this program, because the legal entity will be exempt from criminal liability if it proves that before the commission of the crime it had an adequate compliance program in place and that it has been implemented effectively.
Sara Gabernet
Lawyer Expert in Legal Law
M&C Attorneys at Law
