Mariana Toalí Bayancela Delgado proposes in its Final Master’s Degree Project the Compliance Program application in order to avoid the role of legal entities as a conspirator mechanism.
25 september 2018
Title: Compliance Program: Possibilities of implementation in responsibility model of Ecuadorian legal entities.
Author: Mariana Toalí Bayancela Delgado (Ecuador)
The main purpose of the organized criminal activity makes use of the legal person as means. Big crimes have been perpetrated through the creation of paper companies or so-called shell companies. The criminal phenomenon is nothing new; hence, the different legislations around the world have tried to regulate more and more legal persons. This is how rules are established each time they are repressed. This type of rules can be found either in the administrative law sanctioning or through the incorporation of the criminal responsibility of legal persons. There are legal systems such as the Spanish and Ecuadorian that include the RPPJ within their criminal codes.
a study was made of the current model of criminal liability of the legal person contemplated in the Comprehensive Organic Penal Code (COIP)
In comparison with Spain and other legal systems, when there is a norm that involves the RPPJ, compliance programs are introduced into the regulation. In Ecuador, this is not the case; therefore, in the first chapter a study was made of the current model of criminal responsibility of the legal person contemplated in the COIP and the essential aspects of the criminal legislation in force were presented; in addition, the regulatory framework of the RPPJ and the catalogue of crimes for legal persons were reviewed.
The investigation addresses the possibility of implementing the Compliance Program in the model of criminal liability of legal persons. I consider that this is not only to create and establish a rule, it has to be truly effective, for this objective to be achieved mechanisms must be implemented to move from that formal validity and disuse to a material validity, this can be achieved by implementing the Compliance Programs.
unlike Ecuador, in Spain there are a number of judgments dealing with the criminal liability of legal persons
The second chapter studied Spanish legislation, began with an introductory study and the basic notions of the Spanish RPPJ model, and analyzed article 31 bis, terquater and quinquies, regulations that also contemplate compliance programs. Unlike Ecuador, in Spain there are several Sentences that deal with the RPPJ, one of them is the STS 154/2016, of February 29, 2016, a sentence that set a precedent by making the legal person criminally responsible for the first time, in which the Court evaluates the exemption and the importance of a Compliance Program, concluding that the organizational models are tools of control and efficiency that legal persons should have.
In the Ecuadorian Criminal Law was inserted in 2014, the RPPJ, but we are still incipient in the practical application of the rule, because still, there have not been big solved cases, that is to say, there are theoretical advances, but as for pragmatic results and benefit for the country there is not. Precisely in the third chapter, the implementation of the Compliance Program was proposed in Ecuador's RPPJ model, for which a situational analysis of Compliance was made; and, based on a comparison of the Spanish regulatory compliance program, the manner in which it should be implemented in Ecuador is proposed. In the fourth chapter, the Compliance Management System is studied, as a need that the lawyer who studies this subject knows about the Compliance Management System so that he can provide timely and necessary advice to clients.
it would be imperative to reform the Comprehensive Organic Penal Code (COIP) to include compliance programs as an extenuating or exempting factor for the criminal liability of legal persons
After analysing and studying the Spanish regulations and jurisprudence I have reach the conclusion that it would be necessary to undertake a reform in COIP in which the Compliance Programme as a extenuating or exculpatory circumstance for criminal responsibility in legal bodies. In short, the rule is brief and incomplete and therefore needs to be reformed so that it is not an obsolete rule but fulfills the purpose for which it was incorporated into Ecuadorian law. Around the world the Compliance Programs are used and Ecuador cannot be the exception that is why my position throughout this work has been to demonstrate the importance of having a regulation that includes it.
