Legal person – subject of criminal acts against freedom of human sexual self-determination and inviolability
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Abstract
In summer of the year 2006, criminal responsibility to legal persons for most dangerous sexual crimes committed against persons under 18, was introduced in Lithuania. Although this law has been in force for more than two years, so far there have been no cases, where a legal person was sentenced or at least taken to court for these crimes, and the change of this law in Lithuanian society was accepted fairly controversially. Therefore, the authors of this article have set an objective to analyze the possibility to apply the law in practice. The set objective is realized in particular by revealing the aims of the legislator in extending the criminal responsibility for such acts to legal persons, analyzing the basic conceptions of corporate criminal liability in the world and in Lithuania, and the practice in other countries. A short historical overview of Lithuanian corporate criminal liability is provided. Considering the fact that there is no court practice, hypothetical situations are presented and possible versions of qualification according to the applicable law are provided.
Evaluation of theoretical conditions for application of criminal liability to a legal person has shown that that a legal person can be subject of crimes against freedom of human sexual self-determination and inviolability.
Corporate criminal responsibility in Lithuania was for the first time established fragmentally only in the year 2002. International commitments were formally implemented, even though there was no national scientific basis and doctrine at the time.
The theories of identification and respondeat superior are consolidated in the Criminal Code of Lithuania, however, both models render the liability of a legal person impossible, if physical person, who had committed the crime, is not identified.
Even in countries, where a corporate criminal liability is applied for more than a hundred years, legal persons are seen as hardly capable to commit sexual offences, because of the personal character of these crimes, although it is recognized that every case must be judged separately and according to the legislator’s objectives.
Therefore, before legislator makes such an innovative step, first of all detailed analysis of factual situation in Lithuania should be made, demand and expediency to criminalize one or another act must be evaluated and only afterwards, a specific act of law could be enacted. Considering the fact that the Framework decision declares the objectives but leaves for the member states the right to choose the means and the forms of implementation, international norms should not be transferred directly, but international commitments should be adopted in consideration of peculiarities of the national law.
Evaluation of theoretical conditions for application of criminal liability to a legal person has shown that that a legal person can be subject of crimes against freedom of human sexual self-determination and inviolability.
Corporate criminal responsibility in Lithuania was for the first time established fragmentally only in the year 2002. International commitments were formally implemented, even though there was no national scientific basis and doctrine at the time.
The theories of identification and respondeat superior are consolidated in the Criminal Code of Lithuania, however, both models render the liability of a legal person impossible, if physical person, who had committed the crime, is not identified.
Even in countries, where a corporate criminal liability is applied for more than a hundred years, legal persons are seen as hardly capable to commit sexual offences, because of the personal character of these crimes, although it is recognized that every case must be judged separately and according to the legislator’s objectives.
Therefore, before legislator makes such an innovative step, first of all detailed analysis of factual situation in Lithuania should be made, demand and expediency to criminalize one or another act must be evaluated and only afterwards, a specific act of law could be enacted. Considering the fact that the Framework decision declares the objectives but leaves for the member states the right to choose the means and the forms of implementation, international norms should not be transferred directly, but international commitments should be adopted in consideration of peculiarities of the national law.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
