Legal Entity as a Means, a Method, a Instrument of Committing a Crime
- Autores: Balzhinimaeva V.1
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Afiliações:
- HSE University
- Edição: Volume 15, Nº 1 (2022)
- Páginas: 140-163
- Seção: Russian Law: Condition, Perspectives, Commentaries
- URL: https://journals.rcsi.science/2072-8166/article/view/318161
- DOI: https://doi.org/10.17323/2072-8166.2022.1.140.163
- ID: 318161
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Resumo
The possible criminal liability of a legal entity is the most famous dispute. Understanding the nature of the legal person as a fiction or reality is the main argument of the parties. Then other approaches to the involvement of a legal entity in criminal law began to be developed. For example, the legal entity is not considered as a perpetrator of crime, but as a means, a method, and a weapon of committing a crime. We will turn to the arguments presented in theoretical approaches on the recognition of a legal entity as a means, a method, a weapon of committing a crime, as well as judicial practice. Legal entity is proposed to be considered not as a perpetrator, but as a weapon of a crime based on the fictitious nature. Opponents of this approach argue that a weapon is always a real material object. However, judicial practice generally shows the recognition of a legal entity as a weapon of a crime. In this case, if an organization is used as a weapon, the reality of its activity is not taken into account. The focus is made only on the individual — the perpetrator of the crime, and the legal entity and its autonomy are ignored. Theoretical approaches suggest that a legal entity should be viewed as a means of committing a crime. But not the legal entity as a whole, but only the institutionallegal forms of legal entities. A legal entity is also recognized as a means of committing a crime in jurisprudence. It is argued that the infrastructure and legal structure of a legal entity is also used as a method of committing a crime. In judicial practice we see a direct indication that a legal entity has been created by an individual for the purpose of committing a crime. In this way, the theories of fiction and reality of a legal entity are used by the parties to the dispute. Courts directly indicate that the legal entity has been used as a weapon and means of committing a crime, while ignoring its autonomy and focusing on an individual.
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Sobre autores
Violetta Balzhinimaeva
HSE University
Autor responsável pela correspondência
Email: vbalzhinimaeva@hse.ru
ORCID ID: 0000-0002-3832-7151
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Bibliografia
- Abashina L.A. (2008). Legal entity as a subject of criminal responsibility. Candidate of Juridical Sciences Summary. Moscow, 26 p. (in Russ.)
- Abramyan T.A. (2018) Criminal liability of legal entities: foreign experience and prospects of introduction in Russia. Bezopasnost' biznesa=Business security, no 2, pp. 59-63 (in Russ.)
- Alexandrov V. (1865) The doctrine of legal persons, according to the principles of science (discourse of a student of the Imperial Moscow University, Faculty of Law, IV course). Moscow: University printing house (Katkov and Co.), 152 p. (in Russ.)
- Antonova E.Yu. (2009) Responsibility of juridical person in criminal law: arguments pros and cons. Ugolovnoe pravo = Criminal Law, no 5, pp. 4-9 (in Russ.)
- Bastrykin A.I. (2015) Protection of constitutional rights of citizens as a fundamental function of the Investigative Committee of the Russian Federation. Rossijskij sledovatel' = A Russian investigator, no 11, pp. 3-6 (in Russ.)
- Belousov D.M. (2015) Pressing issues of investigation into illegal transfer of assets abroad. Zakonnost' = Legality, no 3, pp. 11-14 (in Russ.)
- Bogdanov E.V. (2017) The question of introducing criminal liability for legal entities: arguments against it. Vserossijskij kriminologicheskij zhurnal = All-Russian Criminological Journal, vol. 11, no 2, pp. 370-379 (In Russ.)
- DOI:https://doi.org/10.17150/2500-4255.2017.11(2).370-379
- Gabov A.V. (2014) Theory and practice of reorganization (legal aspect). Moscow: Statute. 880 p. SPS “ConsultantPlus” (in Russ.)
- Gervagen L.L. (1888) The development of the doctrine of the legal entity. St. Petersburg: printing house of I.N. Skorokhodov, 91 p. (in Russ.)
- Gin-Barisevichene K. (2015) The fight against one-dayers continues. EZH-YUrist = EG-Lawyer, no 29, p. 2. (in Russ.)
- Golovko L.V. (2017) Deja vu: yet another argument for corporate criminal liability. Zakon = Statut, no 8, pp. 105-114. SPS “ConsultantPlus” (in Russ.)
- Ivantsov P.P. (2001) The problem of liability of legal entities in Russian criminal law. Candidate of Juridical Sciences Summary. Saint Petersburg, 23 p. (in Russ.)
- Kachalov V.V. (2016) Criminal liability of legal entities: a critical analysis of arguments against. Lex russica, no 12, pp. 32-40. SPS ConsultantPlus (in Russ.)
- Khlus A.M. (2018) Means of committing crimes as an element of their criminalistic structure. Rossijskoe pravo: obrazovanie, praktika, nauka = Russian law: education, practice, science, no 1, pp. 24-32. SPS Garant (in Russ.)
- DOI:https://doi.org/10.34076/2410-2709-2018-1-24-33
- Klepitsky I.A. (2013) Criminal liability of corporations: “for” and “against”. Criminal legal impact on legal entities: materials of the Russian-German criminal law seminar (June 26, 2012). Moscow: Yurlitinform, pp. 36-47.
- Komosko A.A. (2007) Criminal liability of legal entities. Candidate of Juridical Sciences Summary. Moscow, 30 p. (in Russ.)
- Krokhina U.A. (2015) Improving the liability of legal persons as a means of securing the de-offshorisation of the Russian economy. Rossijskaya yustitsiya = Russian justice, no 11, pp. 41-44. SPS ConsultantPlus (in Russ.)
- Kuritsina E. (2001) A legal entity as an instrument of crimes. Rossijskaya yusticiya = Russian justice, no 2, pp. 42-43. SPS ConsultantPlus (in Russ.)
- Kvashis V.E., Sluchevskaya Yu.A. (2016) Institute of criminal liability of the legal entities as a new stage of development of the criminal law. Zhurnal rossijskogo prava = Journal of Russian Law, no 12 (240), pp. 79-90 (in Russ.)
- DOI:https://doi.org/10.12737/22723
- Lebedev S.Ya. (2017) Criminal liability of a legal entity is the same legal fiction as the legal entity itself. Soyuz kriminalistov i kriminologov = The Union of Criminalists and Criminologists, no 1-4, pp. 26-32 (in Russ.)
- Legal regulation of monetary circulation (Monetary law) (2016) N.M. Artemov, I.B. Lagutin, A.A. Sitnik, et al. Moscow: NORMA, 96 p. SPS Garant (in Russ.)
- Lyaskalo A.N. (2017) Classification of foreign currency crimes: issues of differentiation and accumulation. Ugolovnoe pravo = Criminal law, no 5, pp. 67-76 (in Russ.)
- Minin R.V. (2008) Institute of Criminal Liability of Legal Entities in Russia: problems of conditionality and regulation. Candidate of Juridical Sciences Summary. Tyumen, 22 p. (in Russ.)
- Minin R.V. (2016) Formation of the list of crimes committed by legal entities. Lex russica, no 10, pp. 97-104 (in Russ.)
- Rozenko S.V. (2015) The problems of classification and punishability of special elements of fraud. Ugolovnoe pravo = Criminal law, no 5, pp. 84-85 (in Russ.)
- Rozhavsky Z.D. (2017) Figurehead in the context of crimes committed with the use of shell companies. Sovremennoe pravo = Modern Law, no 6, pp. 85-88 (in Russ.)
- Savenkov A.N. (2016) Criminal law practices and stability of crediting system. Zhurnal rossijskogo prava = Journal of Russian Law, no 9, pp. 78-91. SPS ConsultantPlus (in Russ.)
- DOI:https://doi.org/10.12737/21223
- Savigny F.K. (2012) The system of modern Roman Law: In 8 vols. Vol. II. Translated from German by G. Zhigulin; Edited by O. Kutateladze, V. Zubar. Moscow: Statute; Odessa: Center for the Study of Law Savigny, 573 p. SPS ConsultantPlus (in Russ.)
- Sholokhov S.V. (2003) Commercial organization as an instrument of crime. Sledovatel’ = Investigator, no 6, pp. 13-14 (in Russ.)
- Smirnov G. (2014) Does a legal entity have a soul? Corporations should be criminally liable on an equal basis with individuals. Yurist speshit na pomoshch' = Lawyer hurries to help, no 8, pp. 17-24 (in Russ.)
- Soloviev I.N. (2016) Criminal law characteristic of art. 173.2 of the Criminal code of the Russian Federation in view of the amendments introduced by Federal law of March 30, 2015 N 67-FZ. Rossijskij sledovatel’ = A Russian investigator, no 3, pp. 34-41. SPS ConsultantPlus (in Russ.)
- Soloviev I.N., Moiseenko M.A., Povetkina N.A., Ilyin A.Yu., Mironenko T.V., Ataev D.A. (2017) Identification of tax crimes: a comprehensive study. Prospect. 192 p. (in Russ.)
- Sychev P.G. (2014) Property-related economic crime and processing effects. Imushchestvennye otnosheniya v Rossijskoj Federatsii = Property relations in the Russian Federation, no 12 (159). pp. 80-92 (in Russ.)
- Tagantsev N.S. (1902) Russian criminal law. Lectures. The General part. 2nd ed. Saint Petersburg: University, vol. I, 815 p. (in Russ.)
- Tsepov G.V. (2017) You are hit in your face, not in your passport, or: concepts of sham company, straw person and shadow director in Russian court practice. Zakon = Statut, no 6, pp. 86-100 (in Russ.)
- Viskov N.V. (2006) Objects of a crime, tools and means of its committing in the aspect of solving the fate of physical evidence. Rossijskij sledovatel’ = Russian investigator, no 3, pp. 2-5 (in Russ.)
- Voronkevich S.A. (2008) Criminalistic analysis of the structure of economic crimes. Pravo i demokratiya = Law and democracy, Issue 19, pp. 314-324 (in Russ.)
- Yani P.S. (2015) Specific types of fraud. Zakonnost’ = Legality, no 3, pp. 47-52 (in Russ.)
- Zyryanov S.M. (2015) Administrative responsibility as variety of juridical responsibility. Vestnik Moskovskogo universiteta MVD Rossii = Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia, no 6, pp. 79-85 (in Russ.)
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