Legal entities must be the subjects of criminal responsibility.
(Baonghean) - The draft Penal Code is being revised fundamentally and comprehensively. There are many new criminal regulations, including the issue of imposing criminal responsibility on economic legal entities (collectives with legal status).
The view that the criminal responsibility of an economic legal entity (EP) cannot be carried out both in terms of crime and in terms of the purpose of punishment. EP is a collective, criminal responsibility cannot be applied and punishment cannot be applied. Because a legal entity is an "invisible" entity, it is the resonance of the will of many specific people who founded it. EP itself cannot carry out acts that are dangerous to society but must be done through specific people and imprisonment or death penalty cannot be applied to EP. Therefore, if EP is charged, it is an objective charge - an anti-democratic form. On the other hand, proving that a legal entity commits a crime is very difficult because a legal entity is the resonance of the will of many individuals. Therefore, criminal responsibility and punishment only apply to individuals, while natural persons cannot because it is contrary to the principle of "individualization of criminal responsibility and punishment". We believe that a legal entity is the subject that must bear criminal responsibility...
On the other hand, if we think that applying punishment to PNKT will be unfair and will damage the principle of individualization of punishment. Such a concept is too narrow and no longer suitable for the current situation. Because individualization of punishment cannot be separated from the perception of sanctions applied to PNKT. If legal entities are entities capable of committing crimes, then why should individuals not be held criminally responsible when they commit crimes? Is it fair to only force subordinates who have no power and managers to be the ones to bear legal consequences instead of PNKT? Is it fair when individuals commit crimes like legal entities, but individuals are held criminally responsible while legal entities are not?
If we think that applying punishment to a legal entity that commits a crime is contrary to the principle of individualization of punishment, it is incorrect, because the conviction or punishment is not aimed at the individual member of the PNKT but at the PNKT itself - the subject of criminal responsibility. The conviction of an individual also affects an innocent third party, that is, their family, and if they are the director of a business, the impact is much greater. Therefore, it is inappropriate to think that punishment to a legal entity is contrary to the principle of individualization of criminal responsibility.
If we think that PNKT only needs to apply administrative responsibility and civil responsibility to meet the requirements. Such awareness is not complete and does not fully assess the reality. Recently, many PNKT such as VEDAN in Dong Nai, Thanh Thanh Thai in Thanh Hoa... for profit have discharged waste into the environment causing serious consequences for society but only handled administratively. The fine may not make PNKT give up the violation, the fine is too little, too low and sometimes the prevention effect is not high. In addition, criminal prosecution of the head of the legal representative cannot be carried out because the composition of environmental crime requires satisfying the sign of "having been administratively sanctioned but deliberately failing to take remedial measures according to the decision of the competent state agency causing serious consequences". But in reality, administrative sanctions only apply to legal entities, not to the representative of the legal entity that commits the violation...
In general, there are 119 national economic organizations that regulate criminal liability of legal entities, of which 5 countries are in Southeast Asia alone. In the context of our country reforming, opening up, deeply integrating into international relations, signing and negotiating economic and trade treaties, if the criminal liability of legal entities is not regulated, it can be easily exploited by foreign economic organizations to violate the law. At the same time, many countries with increasingly large economic relations with our country have regulated the criminal liability of economic organizations. If our country does not regulate, it will be unequal because if our country's economic organizations commit violations abroad, they will be criminally prosecuted, while legal entities from their countries commit violations in our country will only be administratively prosecuted.
Tran Van Hoi(Tuong Duong People's Procuracy)
