The latest change in the area of criminal liability of legal entities
We would like to inform you about the latest change in the area of criminal liability of legal entities. “Act No. 183/2016 Coll.” amending Act No. 418/2011 Coll., on Criminal Liability of Legal Entities and Proceedings against them”, as amended, became effective on 1. 12. 2016 and has brought a number of significant changes.
The first significant change is the significant extension of criminal offenses which may be committed by a legal entity. Unlike the previous regulation, which by referring to the particular actual findings in the Penal Code expressly stated criminal offenses which may be committed by a legal person, newly, the legal entity will be able to be liable in principle for all criminal offenses contained in the Penal Code, expect those where the act on criminal responsibility expressly excludes it. Newly, the legal entity can commit e.g. the criminal offense of violation of protected industrial rights, the criminal offense of spreading infectious animal diseases, the criminal offense of defamation or the criminal offense of public safety threat.
In line with the extension of criminal offenses that may be committed by a legal entity, there have been supplemented correspondingly the lists of criminal offenses where effective repentance is excluded, where limitation of criminal liability of legal entities is excluded and where limitation of execution of a punishment imposed on a legal entity is excluded.
The second significant change pertains to the imputability of an offense to a legal entity. According to the new Act, a legal entity discharges itself from criminal liability, provided it has exerted every effort which could be reasonably required from the legal entity to avoid committing an unlawful offense by persons acting on its behalf of by its employees.
Newly, it is possible that the legal entity discharges itself from criminal liability also for the acts of statutory bodies or executives and not only for the acts of “ordinary“employees, as it has been until now.
Any effort which can be reasonably required from a legal entity must be construed in such a manner that the legal person not only complies with all laws and other legal regulations but also in such a manner that the legal entity has created so called compliance system focused on the prevention and detection of acts which may constitute actual findings of a criminal offense. The law does not define which particular measures should be taken by the legal entity and it will be up to the practice of the courts to make this definition. It can be assumed that these measures can consist in respective internal regulations governing the behaviour of employees in different situations, conducting employee training but also performing inspections whether the required measures are kept by the employees and it is desirable to have written records about implementing and performing of these measures so that they can be submitted, if necessary, to the bodies active in criminal proceedings as an evidence of effort of legal entities to comply with the compliance measures.
Due to the crucial extension of criminal offenses for which the legal entity can be criminally liable and to the possibility of discharging its criminal liability in the event of existence and keeping an effective compliance system we recommend to pay reasonable efforts to build and keep this compliance system.
If you are interested in assisting with implementing the mentioned compliance system, our colleagues specializing in issues of criminal law are ready to help you.
JUDr. Ing. Jan Vych