Жауапкершілік заңнамасы: заңды тұлғалардың жауаптылығы

Laws that create liability for business entities
Corporate liability, also referred to as liability of legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons it employs and, in some legal systems, for those of other associates and business partners. Since corporations and other business entities are a major part of the economic landscape, corporate liability is a key element in effective law enforcement for economic crimes. A 2016 mapping of 41 countries’ corporate liability systems shows wide variations in approaches to liability, and that corporate liability is a dynamic area of legal innovation and evolution. The term legal person refers to a business entity (often a corporation, but possibly other legal entities, as specified by law) that has both legal rights (e. g. the right to sue) and legal obligations. Because, at a public policy level, the growth and prosperity of society depends to a large extent on the business community, governments must carefully tailor the extent and ways that each permitted form of business entity can be held liable. Important design elements of corporate liability systems include jurisdiction, successor liability, related and unrelated entities as sources of liability, sanctions and mitigating factors.

Countries can base their corporate liability systems in criminal or non criminal law (that is, administrative or civil law) or in both. They can also enact legislation that creates liability for legal persons in specific areas of law (e. g. covering health and safety, and product safety issues). Under this approach, the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent. Generally, countries’ approaches to this issue reflect long standing and diverse legal traditions. For example, Australia and Canada anchor their corporate liability systems in criminal law, while the German and Italian systems are based in administrative law. Some jurisdictions use criminal and civil systems in parallel, thereby expanding options for pursuing legal accountability for legal persons and for making political judgments on when to use the criminal law in order to maximise the impact of those cases that are prosecuted. The United States’ system of corporate liability is an example of one that incorporates both criminal and civil law elements. This approach has its roots in English law. In a seminal case, Tesco Supermarkets Ltd v Nattrass [1972] AC 153, the House of Lords found that a store manager was not a part of the "directing mind" of the corporation and therefore that his conduct was not attributable to the corporation. This approach has been criticised because it restricts corporate liability to the acts of directors and a few high level managers. It may therefore unfairly favour larger corporations because they may be able to escape criminal liability for the acts of employees who manage their day to day activities. This has proved problematic as in the cases involving corporate manslaughter. A 2016 study of 41 countries’ corporate liability systems shows that meeting the ‘controlling minds’ test is not usually required for liability, though it is almost always sufficient to attribute liability to a company. In effect, this doctrine is relevant to establishing the knowledge (but not the intent) aspect of mens rea for legal persons. In United States v Bank of New England (1987) 821 F2d 844, the Supreme Court sanctioned the use of the doctrine to uphold the conviction of the Bank of New England for wilfully failing to file reports relating to currency transactions. The Court confirmed the collective knowledge doctrine, arguing that, in the absence of such a principle, business entities could divide the duties of their employees so as to compartmentalise their knowledge, thereby avoiding liability. Aggregation has been applied in Australian courts, but is rejected in England.

Many legal analysts (e. g. Gobert) argue that if a corporation fails to take precautions or to show due diligence to avoid committing a criminal offence, this will arise from its culture where attitudes and beliefs are demonstrated through its structures, policies, practices, and procedures. This approach rejects the notion that corporations should be treated in the same way as natural persons (i. e. looking for a "guilty" mind), and advocates that different legal concepts should underpin the liability of fictitious legal persons. These concepts reflect the structures of modern corporations which are more often decentralised and where crime is less to do with the misconduct by or incompetence of individuals, and more to do with management and compliance systems that fail to address problems of monitoring and controlling risk. Many corporate liability systems consider that corporate culture and the management and compliance systems adopted by companies are relevant to understanding culpability. Such considerations may enter as an element of the offense (so that prosecutors must prove that management and compliance systems were inadequate) or as an element of defence for the company (wherein the company must show that its systems were adequate). Some countries do not permit management and compliance systems to preclude liability, but nevertheless allow them to be considered as mitigating factors when imposing sanctions.

In some instances of fraud, the court may pierce the veil of incorporation. Most fraud is also a breach of the criminal law and any evidence obtained for the purposes of a criminal trial is usually admissible in civil proceedings. But criminal prosecutions take priority, so if civil proceedings uncover evidence of criminality, the civil action may be stayed pending the outcome of any criminal investigation.

Some crimes are considered inchoate because, like a conspiracy or attempt, they anticipate the commission of the actus reus (the Latin for "guilty act") of the full offence. One option for prosecution would be to treat a corporation as an accomplice or co conspirator with the employees. In general terms, most states permit companies to incur liability for such offences in the same way as natural persons so long as there are at least two natural persons involved in the conspiracy and one other accomplice to aid the commission of the offence by a principal.