The purpose of this article is to show the reason why criminal liability of juristic persons depends on the definition of the concept of juristic persons in private law. For the juristic person to be capable of being liable for criminal acts, it should be devised as an independent entity that has a will of its own, distinct from that of the people who make up the juristic person, thereby relying on the organic theory. The juristic person cannot be regarded as a mere ‘fiction’ where its representatives’ will ‘is deemed’ to be its own will. The Czech law on criminal liability of juristic persons is therefore based on the organic theory. This law only provides for criminal liability of juristic persons. However, it is left to private law to determine what a juristic person is and what its acts are. Thus, a juristic person can only be the perpetrator of a criminal act if this is made possible by its construction in private law. But Czech private law currently stems from the theory of fiction. The result is that this law can only be applied at the cost of courts adopting an interpretation that completely diverges from the literal wording of the law. The contribution shows the specific problems caused by the incongruent concepts of juristic persons in criminal law and in private law, and the options for addressing this incongruence.
Beran, Karel, How Criminal Liability of Juristic Persons Depends on the Concept of Juristic Persons in Private Law (January 30, 2015). European Criminal Law Review (EuCLR) Vol 5 (2015), no 2, p 161-193.