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SJIF
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A
BSTRACT
The article characterizes the ratio of types of responsibility of legal entities in the Republic of Uzbekistan
in the modern legal order, as well as some issues of corporate criminal responsibility.
K
EYWORDS
Corporate criminal responsibility, legal entity, public danger, punishment.
I
NTRODUCTION
One of the main tasks of the modern criminal
legislation of the Republic of Uzbekistan is to
increase the level of protection of the rights and
legitimate interests of subjects of legal relations.
Today, in Uzbekistan, only individuals can be
brought to criminal responsibility, while legal
entities are not the subjects of a crime and, in
accordance with national legislation, civil and
administrative responsibility can be applied to
legal entities that have committed offenses. This
practice was also in other neighboring countries,
but over time it began to change.
Our country did not know the institution of
criminal responsibility of legal entities. It is not
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Research Article
ON THE ISSUE OF CRIMINAL LIABILITY OF LEGAL ENTITIES
Submission Date:
January 02, 2023,
Accepted Date:
January 06, 2023,
Published Date:
January 11, 2023
Crossref doi:
https://doi.org/10.37547/ijasr-03-01-01
Rustam Akhmedovich Zufarov
Professor OF THE Department OF "Criminal Law, Criminology AND Anti-Corruption" OF Tashkent State Law
University, Doctor OF Law, Uzbekistan
Volume 03 Issue 01-2023
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VOLUME
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traditional for us. During the Soviet period,
criminal legislation and the theory of criminal law
in general proceeded from the inadmissibility of
bringing legal entities to criminal responsibility.
Only at the end of the XX century, this topic began
to rise again in the scientific literature. To some
extent, this was due to the need to reform
criminal legislation in general.
Currently, the problem of criminal responsibility
of legal entities is widely discussed in the legal
environment and the criminal law considers only
an individual as a subject of a crime.
An individual, being one of the main elements of
the composition of crime in criminal law, has a
number of specific features that are important for
resolving the issue of bringing him to criminal
responsibility.
As mandatory signs of a subject of criminal law, it
is recognized that subject is represented as a
physical, sane person who has reached a certain
age established by criminal law. An facultative
sign characterizes a special subject of a crime
defined by the doctrine of criminal law.
The qualification of a crime can be influenced only
by two of these signs - age and the sign of a special
subject. The analysis of various points of view of
legal scholars [1], allows us to come to the
conclusion that an agreement with the authors is
necessary, claiming that the legislative
consolidation of a legal norm in the Criminal Code
created insurmountable obstacles to the
qualification of the actions of persons who do not
have the sign of a special subject of a crime, but
who took a direct part in its commission.
The legislative provision formulated in the
criminal law is not absolute, applicable to all,
without exception, cases of complicity in a crime
committed by a special subject. In this regard,
there is serious doubt about the expediency of
including this and similar provisions of the theory
of criminal law in the law, which need additional
clarifications and reservations.
It should also be borne in mind that in a number
of crimes, a special subject is characterized not
only by the presence of additional signs, but also
by specific conditions for recognizing a person as
a special subject of a crime. The mere fact of a
person's formal presence in the sphere of special
public relations does not mean that the violation
of special duties committed by him should entail
criminal responsibility.
In the question of the qualification of such
situations, it is necessary to pay attention to the
acquisition by a person of the status of a special
subject against his will. It is assumed that if a
person acquired the status of a special subject
against his will, and the duties of a special subject
were assigned to him, he must be recognized as
an improper subject of this crime and cannot be
held responsible for it. If a person voluntarily
assumed the rights and obligations inherent in a
special subject of a crime, he must answer as the
perpetrator of the crime with a special subject.
This situation has been reflected in cases of abuse
of power and exceeding of power.
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In general, criminal responsibility is a type of legal
responsibility related to measures of state
coercion that can exert the necessary influence on
subjects of various spheres of legal relations that
allow misconduct.
Currently, the problem of corporate social
responsibility (CSR) is the subject of discussion
by many scientific communities, mass media,
creative, scientific research of various scientists.
It is necessary to understand that the social
responsibility of business is much broader than is
commonly believed. When making decisions,
companies should not be guided solely by a sense
of their own benefit, but must take into account
the possible consequences of their actions on the
well-being of all stakeholders. The social
responsibility of business also implies economic,
legal, ethical and philanthropic types of
responsibility.
If economic responsibility is basic and includes
the ability of a company to earn sufficient profit,
create new jobs and produce goods and services
demanded by society, then legal responsibility
means that profit must be achieved legally in
accordance with the requirements established by
the state, which in turn is the legal responsibility
of the business. An important role is played by
ethical responsibility, which implies the moral
behavior of the organization in relation to all
interested parties and, first of all, to society.
Ethical behavior, although not established by the
law, but many companies independently develop
"codes of ethics" based on standards of fairness
and equality, so that their employees can
distinguish between ethical and immoral
behavior.
Philanthropic
responsibility
-
philanthropic
obligations
are
exclusively
voluntary activities of organizations that
contribute to improving the quality of life of
society, for example, such as charity, donations,
sponsorship, gratuitous financing of social
projects.
Civil torts and administrative offenses are
fundamentally different from legal acts in the
criminal legal order. Civil legislation, defining the
legal status of participants in civil turnover, is
designed to regulate relations between persons
engaged in entrepreneurial, business activities
and protect civil rights and obligations. Therefore,
the main distinguishing feature of civil
responsibility from any other legal responsibility
is that it is presented as a sanction for violation of
civil laws and is established to ensure the
conditions for the normal development of public
relations regulated by civil law.
The issue of civil responsibility becomes
particularly relevant due to the fact that such
entities as legal entities with a complex internal
structure take part in civil turnover. Based on this
factor, it seems expedient to need an approach
that would divide the solution of emerging issues
of
responsibility
into
two
categories:
identification of the guilty subject, as well as the
definition of the subject of responsibility.
Since when conducting a study of all the
circumstances of a particular violation of civil
rights, it is possible to determine whether a legal
entity is really guilty of committing this offense,
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and what measure of responsibility should be
chosen in relation to it.
The civil responsibility of legal entities is
considered as a generic concept, which also
includes the behavior of individuals. Yes, as we
know, for the most part, the responsibility of a
legal entity is characterized by a property
character. But responsibility may also have a non-
material form (for example, in the case of
protecting business reputation).
Legal entities may be held responsible: acting as
the founder, owner of the property of another
legal entity. This kind of responsibility should be
provided for by civil legislation: in case of non-
performance or improper performance of the
contract (contractual responsibility ); in case of
damage, in most cases, which is not related to
non-performance or improper performance of
contractual obligations (that is, non-contractual
responsibility ).
For the most part, in order to bring a legal entity
to civil responsibility , it is important to have the
following factors: violation of the requirements
established by regulatory acts, or the terms of the
contract with which the occurrence of civil
responsibility is associated; illegality of the act;
the presence of harm or loss to the injured party;
causal relationship between the illegal act of the
violator and the consequences that have
occurred; the fault of the violator.
The legal entity will be held responsible in
accordance with the general rule in the amount of
losses or harm caused. Nevertheless, the onset of
responsibility takes place even in the absence of
losses
–
for example, it may be the recovery of a
penalty.
In the case of non-contractual responsibility, the
opposite situation arises, in which a law or
contract may establish the obligation of the harm-
doer to pay compensation to the injured party, in
an amount higher than compensation.
Proceeding from the above, we can say that the
civil responsibility of legal entities has its impact
directly on the owners and officials of the
organization, aiming to ensure compliance with
the applicable legal norms on the part of the
latter, thereby preventing possible losses of a
legal entity, primarily of an economic nature.
The civil responsibility of a legal entity becomes
possible because the legal consequences of
actions committed by physically authorized
persons are transferred to the legal entity: the
chairman or a member of the management board
who sign a contract on behalf of the latter and this
contract is considered binding for the legal entity.
Regarding the application of criminal sanctions to
legal entities, many scientists consider it
inappropriate to establish criminal responsibility,
since in the case of the legitimate activity of a legal
entity, it can be liquidated in a civil order. But the
liquidation of a legal entity in a civil procedure is
connected only with the application of a set of
property-related measures to make settlements
with persons who worked under an employment
contract, creditors and other persons.
But in case of violation of public relations
protected by criminal law, it seems that the
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application of civil law measures is not enough.
For example, the committed act exceeded the
harm to human health or caused significant
damage to the natural environment. Recognizing
that individual illegal activities of legal entities
can be dangerous and capable of causing harm to
society, the degree of which is quite large, it seems
that such activities should be considered a crime
and, therefore, criminalized and entail criminal
responsibility.
Another significant factor is that recently
countering various types of illegal activities of
legal entities increasingly requires international
cooperation in this area. In general, we can talk
about the steady trends of transnationalization of
crime, especially organized, extremist, terrorist,
economic and even corruption. For example, in
the UK, the Bribery Act criminalizes companies
for failing to prevent an act of bribery[2].
Treaties on legal assistance, intergovernmental
agreements and charters of international
organizations make it possible to implement
cooperation on these issues as effectively as
possible in relation to the fight against criminal
activity. Back in 1929, the International Congress
on Criminal Law in Bucharest called for the
introduction of criminal responsibility for legal
entities. In 1946, at the Nuremberg Trials,
individual organizations were recognized as
subjects of international crimes, among others.
Then in 1978 The European Committee on Crime
Problems of the Council of Europe adopted a
recommendation on the establishment of
criminal responsibility of legal entities. The
Istanbul
Anti
–
Corruption
Action
Plan
(hereinafter - IAP) is a sub
–
regional mutual
evaluation program that was launched within the
Network in 2003. The IAP supports anti-
corruption reforms in Armenia, Azerbaijan,
Georgia, Kazakhstan, Kyrgyzstan, Mongolia,
Tajikistan, Ukraine and Uzbekistan through
country reviews and continuous monitoring of
countries'
efforts
to
implement
recommendations
in
support
of
the
implementation of the UN Convention against
Corruption of October 31, 2003 [3] and other
international standards and good practices,
which also provided reviews on responsibility of
legal entities. Thus, in general, various
international documents recommend providing
for criminal responsibility of legal entities in one
form or another.
Consequently, the need for criminal, and not only
administrative and civil responsibility of legal
entities is dictated not only by purely theoretical
considerations, but also by the real needs of the
practice of combating crime. Crimes differ from
administrative offenses not by the nature and (or)
the amount of punishment and not even by the
type of illegality (this is rather a consequence),
but by public danger. Public danger is an objective
category, if we recognize its presence in the
actions or omissions of any person, including a
legal one, then we are simply obliged to prohibit
such an act as a crime.
Foreign experience shows that, depending on the
chosen
model
of
establishing
criminal
responsibilityof legal entities, we can talk about
both the consolidation of specific types of crimes
that can be committed exclusively by legal
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entities, and the extension to legal entities of
certain already criminalized acts or even all
socially dangerous acts prohibited by criminal
legislation. In general, most often they write
about the need to hold legal entities accountable
for environmental, economic, and corruption
crimes. This list can be safely continued by
pointing to crimes against public safety, public
health and public morality, in the field of traffic
safety and operation of transport, extremist
orientation, etc.
Another aspect that must be emphasized is the
ratio of responsibility of legal entities and
individuals. A legal entity cannot actually commit
a crime, it is always committed by some
individuals and a legal entity can commit crimes
through the use of these individuals, who act as a
kind of living tools, however, reasonable tools
that
can
bear
criminal
responsibility
independently. The introduction of criminal
responsibility of legal entities can lead to the
irresponsibility of individuals guilty of specific
crimes.
Just as the responsibility of an individual should
not replace the responsibility of a legal entity, so
bringing a legal entity to criminal responsibility
does not mean the irresponsibility of specific
individuals. It should also be noted that it is often
very difficult to identify a specific individual who,
for example, committed illegal actions that caused
environmental pollution by an enterprise. And in
this case, the involvement of at least a legal
person, of course, guilty of this crime, will avoid
complete
irresponsibility
and
achieve
compensation for the damage caused.
It is necessary to emphasize the fact that criminal
law norms when bringing individuals to criminal
responsibility, in addition to the forms of
objective imputation, also determine subjective
forms of imputation, in the form of guilt, goals,
motive, which is absent with respect to legal
entities and not the legal entity itself, but its
representatives, are brought to criminal
responsibility. The necessity is dictated when
determining the responsibility of legal entities to
characterize the grounds for imputing forms of
both objective and subjective nature. Thus, as a
result of an emergency situation, namely the
breakthrough of one of the dams of the
Sardobinsky reservoir of the Syrdarya region of
Uzbekistan, several settlements were flooded,
roads were destroyed, 70 thousand people were
evacuated in Uzbekistan and 30 thousand in
Kazakhstan. The total damage from the tragedy is
estimated at $148.5 million. As a result of this
man-made disaster, only officials of organizations
that participated in the construction of the
reservoir on the basis of the legal norms of
criminal law were brought to criminal
responsibility (art. 207, 258 of the Criminal Code
(official negligence resulting in the death of a
person, violation of safety rules for mining,
construction or explosive work).
The accident at the Chernobyl nuclear power
plant on April 26, 1986, in terms of its scale and
consequences, was the largest man-made disaster
in the history of mankind, which led to serious
environmental problems.
The State Commission formed to investigate the
causes of the disaster assigned the main
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responsibility for it to the operational personnel
and management of the Chernobyl nuclear power
plant, who were brought to criminal
responsibility under articles of the Criminal Code
for violating safety rules at explosive enterprises
and in explosive workshops, abuse of power or
official position, for negligence.
However, in 1990, as a result of a second review,
the commission concluded that "the Chernobyl
accident, which began due to the actions of
operational personnel, acquired catastrophic
proportions inadequate to them due to the
unsatisfactory design of the reactor."
Consequently, the establishment of criminal
responsibility in relation to legal entities also
implies the need for a thorough study and
investigation of the causes and conditions of the
deed and the guilt of those persons who represent
a legal entity, taking into account the nature and
degree of public danger of the crime, the motives
and goals of the deed, the identity of the
perpetrator, the nature of the harm caused, while
observing the principles of legality, justice and
humanism.
C
ONCLUSION
In conclusion, it should be noted that criminal law
measures are important, but not the only
methods of combating illegal acts of legal entities,
which is supposed to be effective when combining
all
types
of
responsibility:
civil
law,
administrative law and criminal law. It seems that
the criminal prosecution of legal entities should
be carried out only in cases where civil and
administrative measures are not able to restore
social justice and prevent the commission of new
acts that cause or are capable of causing damage,
harm to public relations protected by criminal
law.
R
EFERENCES
1.
Nikiforov A.S. Yuridicheskoye litso kak
sub"yekt prestupleniya i ugolovnoy
otvetstvennosti. -M., 2002; Volzhenkin B.V.
Ugolovnaya
otvetstvennost'
yuridicheskikh lits. - SPb, 1998
2.
It is necessary to develop corporate
criminal liability,” Minister of Justice
Ruslanbek Davletov answers a question
from Gazeta.uz at a press conference on
September 11, 2020
3.
https://www.oecd.org/corruption/acn/I
AP-Manual-Monitoring-Experts-RUS.pdf
