Have you ever found yourself wondering about the criminal liability of legal representatives? In this article we will try to explain the different legal concepts and principles involved when it comes to the criminal liability of legal representatives. We will explore how these principles apply in various scenarios and understand their importance when making decisions.
Compliance does not directly refer to the applicability of criminal law, however, it is essential to talk about how the criminal liability of the representatives or administrators of each company has opened the doors for legal entities to implement, within their operating parameters, a series of programs, procedures and regulations that protect the economic interests of the partners, thus avoiding the application of financial penalties, the loss of credibility with the client and the abuse of power.
The performance of corporate audits (better known as due diligence), the development of compliance programs and the implementation of codes of conduct, stem from the international progress in the imposition of fines and sanctions to all those companies that fail to comply with the established protocols and above all, from the objective attribution of the commission of crimes typified at the corporate level such as: tax fraud, money laundering, organized crime, fraud, forgery of public or private documents, crimes against industrial property, among others.
The regulation that attributes criminal liability to the legal representatives or administrators of a legal person in Honduras is established in the new Criminal Code of Honduras published in the Official Gazette on May ten (10) of two thousand nineteen (2019), which determines in Chapter V, Article 27 that: “Liability for actions on behalf of another. Whoever acts in legal or voluntary representation of a natural or juridical person or as de facto or de jure administrator of a company, is personally liable for the conduct carried out, even if the qualities, conditions or relations required by the corresponding crime to be an active subject of the same do not concur in him, but in the person represented,”.
Initially, Decree 130-2017 referred to the criminal liability of legal people in its Title VII Article 102 as follows: “…legal people are criminally liable for intentional crimes committed in the name or on behalf of the same and for its benefit, by its legal representatives or de facto or de jure administrators…”, however, the referred title was repealed through Decree 93-2021 dated November five (05) of two thousand nineteen (2019) published in the Official Gazette La Gaceta.
Honduras should have not repealed the imputability of criminal liability for legal people and limit it only to their representatives or administrators for purely monetary issues. Evidently, this decision was not taken under an analytical scheme or thinking with a view to the future, being that the implementation of compliance programs for good corporate governance is gaining strength at international level and, therefore, it is increasingly required to have measures to protect not only the partners or shareholders, but also the business relationships with third parties involved. In my personal opinion, the repeal of these legal precepts in Honduras, beyond attracting foreign investment, it distances it, due to the lack of legal certainty and corruption that is projected to the investor who truly has the necessary tools and implements for the establishment of compliance programs at the institutional level.
As stated by Dr. Julio Ballesteros, “the criminal liability of legal people is a fundamental protection mechanism in modern societies that have the advantage that regulatory compliance moves protection from reactive to preventive, also including its detective function” (Sanchez, 2020). It is foreseen that, with the course of time, all those countries that are not regulated under compliance policies will be under the obligation to do so, such is the case of countries located in America such as: Mexico, Ecuador, Chile, Canada, United States, among others, which have already incorporated to their legislation the criminal liability of legal people, therefore, it is expected that eventually, International Trade will drive all economies to implement these programs since, as it is public knowledge, in Latin America there is a high degree of corruption not only at economic-social level, but also at corporate level and this is due to the deficiency in the systems that regulate institutional actions, so it will not be easy to implement the culture of compliance and less for countries in the process of development.