Criminal liability of commercial companies

• Pages: 83-91

Vol. 9 No. 1

March, 2023

ISSN 2410-3918

Acces online at www.iipccl.org

83

Academic Journal of Business, Administration, Law and Social Sciences

IIPCCL Publishing, Graz-Austria

Criminal liability of commercial companies

Elira Kokona

Abstract

The criminal responsibility of commercial companies is one of the innovations brought

from the economic development of companies, creating the possibility of sanctioning legal

entitiesdue tothe criminaloenses theycould commit.Discussions relatedto thecriminal

responsibilityoflegalentitieshaveexistedsincetherstmomentwhenthelawrecognizedthe

possibility of creating (founding) legal persons. The dilemmas continue to be at the center of

discussions not only in terms of the national aspect, but also in the international aspect.

In the framework of international law, the concept of criminal liability of legal persons

constitutesanissue whichcontinuesto notreceivea preciseanddenitive answer.Noneof

the contemporary international criminal courts have explicitly jurisdiction over legal entities,

theyaremainlybasedontheprincipleoftheindividualcriminalresponsibility.Thediculties

haveresulted fromtheconceptually dierentapproaches ofthe states,some ofwhichhave

gainsaid the recognition of their criminal responsibility.

Despiteallthe diculties,however,the InternationalCriminalCourt inthe“New TVSAL”

case for the rst time envisaged the possibility of criminal responsibility of a corporation,

armingthe jurisdictionovercorporations ofan internationalcriminal court.Through this

decision,it wastestiedthat thecriminal responsibilityof corporationsunder international

law is not conceptually impossible.

Keywords: Criminal liability, commercial companies, international law, EU, Albania.

Introduction

Apart from the aspect of international law, the criminal responsibility of legal per-

sons is also problematic in terms of the internal law of the states. This issue was

handled by the Romans, who, although they considered similarities between natural

and legal persons, in terms of the criminal liability of legal persons, held the position

that they cannot possess criminal liability, invoking the principle societas delinquere

non potest. However, they developed later the concept of the corporation as a separate

legal entity, with its own legal rights and obligations, separate from those of its own

shareholders. Even some authors, such as Archille Mastre, claimed that the Romans

consideredlegalentitiescapableforcommiingviolationsandasaconsequencethey

could be punished, later during the 12th - 14th centuries, the concept of corporations

was further developed, making Roman law clearly imposing the criminal liability on

the universitas, but only when members acted jointly.

In the Middle Ages the general tendency was to accept that the legal person could

have criminal liability, but nevertheless there were also arguments that a universitas,

because it was a creation without a soul and without a body, which was not part of

the Church, could not be punishable by the criminal provisions. This theory is based

on the principle societas delinquere non potest, created by Pope Innocent IV.