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Criminal liability for third person's act: case of release on bail

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par Pascal KAVUTTSE
National university of Rwanda - Licence 2011

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I.1.3.consecration of principle of criminal liability of moral persons

The involvement of corporations in diverse aspects of daily life has expended because their number has grown, and the pressure for the imposition of criminal liability for their wrongdoing has increased42(*). According to PATRICK Cannin, it is impossible to impose an infraction to a moral person because the principle of specificity of corporations was considered as an obstacle to criminal responsibility and expend the social character. Indeed, the principle of personality of penalties is opposed to the condemnation of a moral person, therefore, physical persons who compose it will undergo the penalties despite they did not take part to the offence43(*). But Roger BERNALDINI suggests that the principle of personality of penalties cannot prevent moral person to be criminally responsible and punished44(*).

Through those amalgam ideas one can wonder when an offence is committed by a corporation or a moral person?

In case the offence is committed for interest of that moral person45(*).

A crime can be committed for corporation's interest in two cases:

Primo, when it benefits from the committed crime; for example, industrial spy is a kind of offence which can be committed for the benefits and interests of corporation46(*).

Secundo, if an offence has been committed by its organs or its representatives. Criminal responsibility of moral person is only engaged by physical persons because the latter are its conscience and minds47(*). When any statute makes corporate liability an offence for a person to do or omit to do something, that offence is capable of commission by a corporation, unless the contrary is provided48(*).

Therefore, criminal liability of moral person does not exclude that of physical persons who are authors or accomplices to the same acts49(*).

Indeed, even if penal code of Rwanda has not any provisions to punish moral persons, the Rwandan legislator did not forget their criminal responsibility. That why the law No 07/2009 of 27/04/2009 relating to companies contains dispositions relating to penal sanctions applicable to the companies; from article 361 to 364.

I.1.3.1. legal regime of criminal liability of moral person

A corporation is a legal person but it has no physical existence. As a legal entity, a corporation may be placed under a duty to conduct itself in particular way on pain of criminal sanction for non compliance. The type of case where it is most obviously proper that a corporation should be liable arises where a statute imposes a duty upon a corporation to act and non action is taken50(*). Aside from those cases in which the duty is specifically imposed on the corporation as a legal person, prosecuting the corporation within the orthodox model of criminal law an actus reus and mens rea with absence of defenses creates difficulties since the corporate legal entity cannot either act or form an intention of any kind except through its directors or employees. The criminal law's solution to the lack of corporate body to perform the actus reus and mind capable of forming mens rea has been to treat the minds and bodies of the officers and servants of the corporation as supplying its mental and physical capacities51(*).

* 42 D. Dormerod, SMITH AND HOGAN criminal law, 11th edition, US Oxford university press Innc. , New York, 2005. p234

* 43 P. Cannin, Op. Cit., p 91

* 44 R. Bernaldini, Op. Cit., p 508

* 45 J. CLAUDE Soyer, droit pénal et procédure pénale, 16th ed., L.G.D. 31, Rue Falguiere, 15741 Paris Cedex 15 Depot Légal, 2002, p.127 (translated by the author from french)

* 46 Ibid.

* 47Id., p128

* 48 D. Ormerod, Op. Cit., p.240

* 49 J. CLAUDE Soyer, Op. Cit., p.123

* 50D. Ormerod, Op. Cit., p.235

* 51 Ibid.

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