Opinion Guest / Víctor Manuel Peña Briseño: The criminal responsibility of legal persons.
For many years it has been considered that legal or moral persons do not commit crimes and that these can only be imputed to natural persons, who are the ones who perform the acts or behaviors that the law classifies as criminal offenses. However, in the presence of companies that are formed or act with the ostensible purpose of fraud or evade the law, used as a parapet or screen, the Mexican legislator, following theories originating in developed countries, has regulated in Mexico the crimes committed by the Moral people and their consequences.
As an example of fraudulent companies or that intentionally cause damages we can mention some used for money laundering, to transfer abroad money coming from illegal activities or with purpose of tax evasion or others such as the case of Sociedad Financiera Popular Ficrea, Which scammed more than 4,000 savers for an overall amount of more than 5,500 million pesos. Also, in recent times, we have witnessed the malicious and negligent performance of a gas company that has planted destruction and death in the metropolitan area of Guadalajara, reusing defective gas cylinders, eaten in its base by the use and by the time, and only made up to cover these faults.
It is valid to ask: what should be the appropriate sanction for these companies? Has it been enough so far to impose fines or administrative sanctions? Should these companies continue to live to cause damage, committing fraud or leading to death and destruction in households?
There is no doubt that the company could not remain unmoved by the wrongfulness of the acts committed by these companies. The Mexican legislator did well to collect this social concern and translate it into laws that are mandatory and also impose penalties that punish these criminal behavior.
The National Code of Criminal Procedures recently enacted in March 2014 regulates the exercise of criminal action against moral or legal persons who commit a criminal act, through any of its members or representative. The offense must be committed under name, under the protection or for the benefit of the legal person. The criminal action will be exercised not only against the legal person, but also against the individual who must respond for the crime.
Recall that this new law regulates adversarial criminal proceedings, also known as “oral trial proceedings” and is mandatory for the entire Mexican Republic, both federal and state matters, and provides for precautionary measures such as property insurance. Recall that in one of the folders of investigation carried out by the State Attorney’s Office against the aforementioned gas company, a warehouse was ordered to be secured where a large number of defective gas cylinders are stored and located in the Municipality of Zapopan , A measure that tends to preserve the safety of the inhabitants of the metropolitan area.
In the judgment rendered in the process, the Court of Appeal will resolve the pertinence to the natural person imputed (administrator, manager, supervisor, dealer, etc.) and the legal person (in this case the gas company) to which, if applicable The penalty will be imposed.
In Mexico City, for example, the Penal Code, in its numbers 27 and 27 Quintus, criminalizes criminal conduct and penalties ranging from fines to the dissolution of the company. If to avoid these sanctions the company is transformed, merged, absorbed or divided, the judge may annul said legal acts so that the facts do not go unpunished and can impose the corresponding penalty.
If the legal or moral person collaborates with the investigation of the wrongful acts that are imputed and repairs the damage before the stage of the oral trial or establishes effective measures to prevent or discover crimes that could be committed in the future under his protection or with the Use of their means, may reduce their criminal liability.
It is conclusive that several paradigms have been broken in Mexico. One of them is that from now on legal or moral persons may be subject to imputation of criminal offenses when using their means or under their protection are committed fraudulent or willful acts that the law typifies as a crime.
Doctor of Law.