23 september 2016

During the process of globalisation, there have been significant negative effects for the humanity, such as the white-collar crime and corporate and organised crime. In fact, the deregulation of the company actions in the regulatory field, the inability of States to control the development of their business activity and the impossibility of identifying and imputing the people, have led to its structure being frequently used for criminal purposes in the globalised era.

The risks generated by the company resulted in the demand for effective mechanisms to the State to ensure the well-being of the citizenship. In this context, the Criminal Law, as a tool of social control and punitive instrument of ultima ratio, was presented as the most appropriate mechanism for their protection. In response to the reforms introduced by the legislator to meet these objectives, the research was aimed to explain if the normative that regulates the Criminal Liability of legal persons is becoming an effective political-criminal tool of the State for the combat against corporate crime. Answering this question is relevant, especially in view of the almost non-existent applicability of the legislation of Criminal liability of legal persons in countries as Spain and Chile.

Conclusions

Some of the most relevant conclusions were that the globalisation has contributed to the exploitation of the Criminal Law 

For its part, the new globalized criminality has led States to coordinate their efforts at the international level to effectively combat its effects.

It was also concluded that the reasons for legislating on the RPPJ were based primarily on criminal policy considerations such as:

• The company's status as a vehicle for criminality and individual organised irresponsibility;
• The state of political-criminal necessity caused by the lack of control over corporate criminality;
• The need to impose regulated self-regulation on the collective body.

However, the failure of the latter mechanism, based on the maintenance of crime rates within the company after its implementation, was noted.

The overcoming of the societasdelinquere non potest principle by political-criminal considerations led to a lack of dogmatic coherence of the categories of the theory of crime, which has made it difficult for the doctrine to accept the RPPJ. The challenge of complementing Criminal Dogmatics and Criminal Policy led to the creation of new categories and a second way for the entity itself, which would allow the criminal prosecution of legal persons without affecting the guarantees and principles of classic criminal law. On the other hand, the compliance programs would reflect the preventive guidelines of the State Criminal Policy against corporate crime.

With respect to the RPPJ models implemented in Spain and Chile, their choice was mainly due to OECD recommendations, proving the intervention and power that international organizations have in the internal politics of the States. In addition, it was concluded that the poor applicability of the RPPJ regulations in Spain and Chile is due to substantive and procedural problems arising from the dependence between the criminal responsibility of the entity and the previous actions of a natural person in the models. The need for the human substrate has not solved the problems that caused the RPPJ.

The latter demonstrated the failure to comply with the sanctioning purpose of the Criminal Policy against corporate crime, based on the inapplicability of the regulations. It could also be concluded that the preventive aim of corporate criminality as an objective of Criminal Policy is fulfilled as a positive general prevention, as an assumption of symbolic criminal law in the risk society, and as an application of Jakobs' functionalist model. If applied, both would be presented as manifestations of the ideology of globalization, since they are aimed at the instrumentalization of criminal law for utilitarian purposes.

Finally, on the prospects for the viability of the RPPJ, it was concluded that the present conditions of inapplicability will be maintained, unless there are future reforms to the current regulations. It was proposed to create a new model that would grant independence to the imputation of the legal person from the human substrate. In addition, as an effect of globalization, it was predicted that they could end up adopting other currently existing RPPJ models such as the Anglo-Saxon vicarial, or modify the current sanctioning system to an administrative fine.

• Law 20.393 which establishes the criminal liability of legal persons in Chile for money laundering, financing of terrorism and bribery offences.
• Organic Law 5/2010, of 22 June, amending Organic Law 10/1995, of 23 November, on the Penal Code.