University of Warmia and Mazury in Olsztyn
Abstract: This article discusses the issue of criminal liability of legal person in Poland. The law on liability of legal persons for acts prohibited under penalty was adopted by the Parliament on 28 October 2002.The main reason for the law was to adjust Polish law to the Convention for the Protection of the European Communities financial interests. It should be noted that the liability of legal persons is not criminal liability in the strict sense, but it certainly is punitive. Under Polish law, legal persons can be held liable for offences only committed by persons associated with the legal persons.
Key words: legal person, liability, Convention, penalty.
The Act on the Liability of Collective Entities for Acts Prohibited Under Penalty was adopted by the Sejm of the Republic of Poland on 28 October 2002 and came into force after the period of 12 months1. In the justification of the government bill, introduced on 8 July 2002, it was emphasized that the main reason to present the bill was to introduce into the Polish system of criminal law legal instruments provided for in the Convention on the protection of the European Communities' financial interests2, adopted on 26 July 1995 by the Council of the European Union as well as its protocols (I and II). The objective of submitting the Act on the Liability of Collective Entities were liabilities of Poland to the European Union as well as the already introduced into the Polish law changes of legal institutions.3
An important and worthy of a separate presentation is the issue of determining the nature of liability regulated in the Act. A question arises - which type of legal liability are we dealing with? Is it a liability within the scope of criminal law or beyond it? Very often in literature one may find statements that corporate liability on the basis of the act in question constitutes a criminal liability4, as well as opinions that this liability is not of such nature.5. The aforementioned doubts result from the fact that corporate liability is based on a specific type of additional proceedings, admittedly those involving a collective entity, however, dependent on a previously established criminal liability of one of the natural persons defined in Art. 3 of the Act for acts prohibited under penalty provided for in Art. 16 which brought or might have brought a benefit, even if a non-material one.
The discussion in its further sections will be aimed at explaining this issue. The Act on the Liability of Collective Entities is composed of four sections:
1. provisions of substantive law (Art. 2-16 and Art. 43). 2. provisions of adjective law (Art. 21-42),
3. amending provisions (Art. 44-46),
1
The Act of 28 October 2002 on the Liability of Collective Entities for Acts Prohibited under Penalty, Dz.U [Polish Journal of Laws] of 2002, No 197, item 1661, hereinafter referred to as the Act.
2
See: the justification of the bill o the Liability of Collective Entities for Acts Prohibited under Penalty, Sejm printed matter No 706 of 8 July 2002, available at www.sejm.gov.pl.
3
The Act of 9 September 2000 amending the act - Criminal Code, Code of Criminal Procedure, Unfair Competition Act, Public Procurement Act and the Act - Bank Law (Dz.U. of 2000, No. 93, item 1027).
4 See: N A M Y S Ł O W S K A - G A B R Y S I A K B., Odpowiedzialność karna podmiotów zbiorowych,
Monitor Prawniczy 2002, No 23, pp. 1067–1073; G R Z E G O R C Z Y K , T., Kodeks postępowania karnego. Komentarz, Kraków 2003, p. 27; F I L A R M., K W A Ś N I E W S K I Z., K A L A D., Komentarz do ustawy o odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary, Toruń 2003, pp. 26, 133.
5 Compare: M I K B., Charakter prawny odpowiedzialności podmiotów zbiorowych w świetle ustawy
z dnia 28 października 2002 r., Przegląd Sądowy 2003, No. 7–8, pp. 66–67; Odpowiedzialność podmiotów zbiorowych, Apelacja Gdańska, Kwartalnik, Gdańsk 2003, No. 2, p. 11.
4. transitional and final provisions (Art. 47 and 48).
The section relating to substantive law is largely autonomous. It introduced a previously unknown to the Polish legal system model of legal liability sui generis, by introducing measures characteristic to criminal law and adjudicated against collective entities and linking criminal liability of natural persons with the liability of collective entities. The solution adopted in the Act on the Liability of Corporate Entities for Acts Prohibited under Penalty is closely associated with criminal liability, not with the civil or administrative ones6.
Another section of the Act, namely the one relating to adjective law, refers one to the provisions of the Code of Criminal Procedure, whereas solutions regulated by other acts are of a subsidiary nature in relation to the solutions adopted in this code.
In Art. 1 of the Act on the Liability of Collective Entities, the legislator stated a principle under which corporate liability was introduced. Therefore, the basis of liability is the fulfillment of statutory features of a certain provision of criminal law, establishing an offence or tax offence. Hence, the material basis of liability constitutes a conviction by a judgment which has the force of res judicata or other sentencing (see Art. 4 of Corporate Liability Act) of a natural person (specified in Art. 3 of the Act) for an offence or a tax offence specified in Art. 16 of the Act.7
Therefore, corporate liability is dependent on the liability of a natural person. Thus, in my evaluation, this indicates that the relation between corporate liability and the liability of a natural person is of a secondary and derivative nature (not of a prerequisite and independent ones)8.
Legally substantive, independent prerequisites of collective entities liability are9:
1. gaining, as the result of the actions of an individual (Art. 3 of the Corporate Liability Act) who commits an offence, benefit (both material and other) by the corporate entity or at least a possibility of gaining such a benefit (objective prerequisites);
2. the possibility of charging a collective entity with at least negligence in the choosing of an individual or in the supervision of the individual. Thus, pursuant to Art. 5 of the Act, quasi-guilt of a collective entity shall be established (subjective prerequisite). It should be noticed that this prerequisite refers to the concept of guilt adopted in civil law ( it is similar to "strict liability")10.
As a conclusion, it should be assumed that the liability of collective entities does not constitute criminal liability as collective entities do not take responsibility for their actions but for the actions of individuals specified in Art. 3 of the Act. There is another argument supporting this standpoint resulting from Art. 3 of the Act providing that "A collective entity is subject to criminal prosecution for the activities of a natural person:
1) acting within their scope of authority on behalf of or in the name of the collective entity, within the scope of authorization or responsibility to represent it, making decisions on its behalf or conducting internal audits or the surpass of the authority or the failure to take appropriate action,
2) acting on behalf of or in the name of the collective entity, being permitted to do so by the persons listed in 1);
3) acting on behalf or in the interest of the collective entity by courtesy and with the knowledge of the person specified in 1);
3a) being an entrepreneur who directly cooperates with the collective entity in the realization of the legally allowed aim - if such action brought or might have brought a benefit, even if a non- material one, to the collective entity."
As the provision indicates, important is also the fact the this liability is related to "fault in the choice ", as in order for the collective entity to be subject to liability, negligence in choosing a natural person or in the supervision over such a person should be proved. Mentioned should also be the fact that the Polish Act on Liability of Collective Entities for Acts Prohibited under Penalty does not constitute a classical regulation belonging to the field of criminal liability. It regulates the liability of collective entities to whom the legislator did not adopt the attribute of criminal liability. The principles
6 Warylewski, J. Potulski, Odpowiedzialność podmiotów zbiorowych w prawie polskim i europejskim.
Komentarz, Bydgoszcz-Gdańsk 2007, pp. 22-23.
7 M. Filar (ed.), Komentarz do ustawy o odpowiedzialności podmiotów zbiorowych za czyny
zabronione pod groźbą kary, Toruń 2006, p. 41.
8 J. Warylewski, J. Potulski, Odpowiedzialność podmiotów..., op. cit., p. 45. 9
M. Filar (ed.), Komentarz do ustawy..., op. cit., p. 41.
of collective entities liability are blended, civil and criminal regulations, and part of the provisions is of an autonomous nature.
The use of the term "actions" in Art. 3 of the Act indicates that the offence committed by a natural person may be committed by actions or lack of actions to which the person was obligated. The Act on Liability of Collective Entities for Acts Prohibited under Penalty does not present any limitations in regard to the accessory and stage forms of an offence11.
Subject to restriction is the circle of natural persons who commit a crime. A collective entity will be subject to liability for a prohibited act being the action of natural person acting in the name or on behalf of the collective entity within the scope of authorization or responsibility to represent the collective entity. Liable is also the person authorized to make decisions or to conduct internal audit on behalf of the collective entity, also in the case when this authorization is exceeded or the person fails to comply with the obligations (Art. 3 paragraph 1 of the Act on Liability of Collective Entities). Liable for the offence is also a natural person who was allowed to take action as the result of excess of powers or failure to comply with obligations by the person specified in Art. 3 paragraph 1 of the Act (Art. 3 paragraph 2 of the Act) as well as person acting on behalf or in the interest of a collective entity, by courtesy and with the knowledge of the person specified in Art. 3 paragraph 1 of the Act (Art. 3 paragraph 3 of the Act).
Finally, the collective entity is liable for the action of a natural person acting on behalf or in the interest of a collective entity, by courtesy and with the knowledge of the person specified in Art. 3 paragraph 1 of the Act (Art. 3 paragraph 3a of the Act12). However, it should be noticed that the aforementioned liability of natural persons occurs if the action brought or might have brought a benefit (also non-material one) to the collective entity.
Pursuant to Art. 115 paragraph 5 of the Criminal Code, material or personal benefit constitutes benefit both for oneself and somebody else (this might constitute a natural person, a legal person, organizational units without legal personality and an organized group engaged in organized crime)13. Material benefit constitutes every material benefit which may increase assets and decrease liabilities. Material benefit has a measurable economic value (e.g. an object of a certain value, a benefit or a property right having monetary value)14. The supreme Court15 noticed that material benefit shall constitute any benefit (for oneself or another person) or the avoidance of its loss. Exceptional here is the situation where the benefit is vested to the perpetrator or another person on the basis of the legal relation existing at the time of the conduct of the act. The benefit to which the perpetrator of a prohibited act is entitled to and which constitutes the equivalent of the incurred costs or amount of labour shall not be regarded as material benefit. 16. Therefore, the application of the principles of criminal liability and establishments classical to criminal substantive law (inter alia accessory and stage forms of a prohibited act, circumstances eliminating illegality or guilt), regulated in the Criminal Code of 1997 is not possible when it comes to collective entities. Pursuant to Art 116 of the CC relating to the application of provisions of Art. 1-115 of the CC to non- code criminal law, the provisions of the general part of the Code are applied to other acts which provide for legal accountability, unless those expressly exclude their application. Admittedly, the Act on Liability of Collective Entities for Prohibited Acts under Penalty does not expressly exclude the application of the provisions of the general part of the Criminal Code, however, their application is excluded due to the fact that the Act on Liability of Collective Entities does not provide for criminal accountability17. The essence of criminal accountability is making one accountable for own action
11 J. Warylewski, J. Potulski, Odpowiedzialność podmiotów..., op. cit., pp. 57-58. 12
Art. 3 paragraph 3 a was added by Art. 3 paragraph 1 of the Act of 29 July 2011 - amending the act - Criminal Code, Code of Criminal Procedure and the Act on the Liability of Collective Entities for Acts Prohibited under Penalty
(Dz.U. of 2011, No. 191, item 1135). The modification entered into force on 14 November 2011.
13
A. Marek, Kodeks karny. Komentarz, Warszawa 2007, p. 259
14
J. Potulski, Przestępstwa przeciwko działalności instytucji, [in:] L. Gardocki (ed.), System Prawa Karnego. Tom 8. Przestępstwa przeciwko państwu i dobrom zbiorowym, Warszawa 2013, p. 574.
15
Resolution of the Supreme Court of 30 January 1980,VII KZP 41/78, OSNKW 1980, No. 3, item 24.
16J. Majewski, Objaśnienie wyrażeń ustawowych, [in:] A. Zoll (ed.), Kodeks karny. Część ogólna.
Komentarz LEX. Tom I. Komentarz do art. 1-116 k.k., Warszawa 2012, p. 1370.
17J. Raglewski, Rozdział XV. Stosunek do ustaw szczególnych, [w:] A. Zoll (pod red.), Kodeks karny.
determined in the Act (classified by it) and not the action of another person. The fact that in the proceedings concerning the liability of collective entities for prohibited acts under penalty applied are the provisions of the Code of Criminal Procedure does not prejudge the type of this liability. It should be noticed that the Act on the Liability of Collective Entities for Prohibited Acts under Penalty includes its own principles of procedure (procedural regulations), although the provisions of the Criminal Code are applied in a wide scope.
The concept of a collective entity was defined in Art. 2 of the Act. According to the definition, a collective entity constitutes: a legal person and an organizational unit without legal personality, who are provided a legal personality by separate regulations, with the State Treasury, local government units and other associations being excluded (Art. 2 paragraph 1 of the Act). In addition, pursuant to Art. 2 paragraph 2 of the Act, a collective entity is also a commercial partnership with the share of the State Treasury, local government units or associations of such units, a share-holding company in an organization, an entity in liquidation, an entrepreneur not being a natural person as well as a foreign organizational unit.
According to Art. 33 of the Civil Code, legal persons are: State Treasury and those organizational entities upon which special provisions of law confer legal personality. The conferment of a legal personality takes place in the act characteristic to individual types of organizational units by an expressed disposal of a regulation. The conferment leads to providing a given organizational unit with a legal personality and legal capacity. It is worth-noticing that full legal capacity is vested to legal persons from the beginning and it can be executed by the bodies of legal persons18.
Legal persons are:
[1] partnerships governing common land19, which acquire legal personality once their status was confirmed by a village mayor, mayor or president of a city (Art. 18 paragraph 1 of the Act on Planning Common Lands20)
[2] State enterprises, (Art. 1 of the State Enterprise Act)21;
[3] cooperatives22, which acquire legal personality once they are entered into the National Court Register (Art. 11 of the Act - Cooperative Law23);
[4] district chambers of legal advisors and the National Chamber of Legal Advisors (Art. 5 paragraph 2 of the Act on Legal Advisors24);
[5] foundations25 which acquire legal personality once entered into the National Court Register (Art. 7 paragraph 2 of the Foundations Act 26);
[6] bar associations, law firms and the Supreme Bar Council27 (Art. 10 of the Law on the Bar28);
[7] Polish Film Institute being a national legal person (Art. 7 paragraph 1 of the Act on Cinematography29);
[8] Polish Episcopal Conference (all-Poland range) metropolitan territories, archdioceses, dioceses, apostolic administrations, parishes, rectoral churches, Caritas Poland, Caritas of dioceses, Pontifical Mission Societies, Military Ordinate, chapters, personal parishes, Conference of Men Religious, Conference of Women Religious, institutes of consecrated life, order provinces,
18E. Gniewek, Tytuł II. Osoby, [in:] E. Gniewek, P. Machnikowski (ed.), Kodeks cywilny. Komentarz,
Warszawa 2013, pp.82-83.
19J. Górecki, Komentarz do niektórych przepisów ustawy o zagospodarowaniu wspólnot
gruntowych, [in:] J. Gorecki, Prawo pierwokupu. Komentarz do art. 596-602 k.c. i innych przepisów regulujących prawo pierwokupu, Kraków 2002, pp. 191-192.
20
Act of 29 June 1963 on Planning Common Lands (Dz. U. of 1963 No. 28, item 169, as amended).
21
Act of 25 September 1981 on State-owned companies (Dz.U. 2002, No. 112, item 981, as amended).
22M. Hrymak, Prawo spółdzielcze z komentarzem oraz aktami szczegółowymi, Warszawa 2011, pp.
7-8.
23
Act of 16 September 1982 - Cooperative Law (Dz.U 2003, No. 188, item 1848, as amended).
24
Act of 6 July 1982 on Legal Advisors (Dz.U. 2010, No. 10, item 65, as amended).
25A. Kidyba, Komentarz do artykułu 7, [in:] H. Cioch, A. Kidyba, Ustawa o fundacjach. Komentarz,
Warszawa 2010, pp. 172-192.
26
Foundations Act of 6 April 1984 (Dz.U. 1991, No. 46, item 203, as amended).
27D. Michta, Prawo o adwokaturze. Komentarz, Poznań 2012,p. 28. 28
Act of 26 May 1982 - Law on the Bar (Dz.U. 2009, No. 146, item 1188, as amended).
29
abbeys, independent monasteries, monastic houses, higher and lower clerical diocesan seminars and higher and lower clerical monastic seminars, if they are autonomous, as well as The John Paul II Catholic University of Lublin, The Pontifical University of John Paul II in Kraków, Pontifical Department of Theology in Poznań, Wrocław and Warszawa, the Philosophical Department of the Society of Jesus in Kraków, church scientific institutes and church scientific and educational and scientific canonical institutions 30 (Art. 6-9 of the Act on the relation between the State and the Catholic Church31);
[9] National Medical and Veterinary Chamber and district medical-veterinary chambers (Art. 8 paragraph 3 of the Veterinary Surgeon Profession and Medical and Veterinary Chambers Act 32);
[10]Polish Pharmaceutical Chamber and district pharmaceutical chambers (Art. 1 paragraph 3 of the Act on Pharmaceutical Chambers33);
[11]Polish Centre of Accreditation constitutes a legal person (Art. 25 paragraph 2 of the Act on the System of Assessment34);
[12]National Health Fund constitutes a national organizational unit having a legal personality (Art. 36 paragraph 135 of the Act on General Insurance in the National Health Fund 36).
According to the Code of Commercial Companies37, organizational units without legal personality include commercial partnerships (registered partnership, limited partnership and a limited joint-stock partnership). According to Art. 22 paragraph 1 of the Code of Commercial Companies ,a registered partnership constitutes a partnership which conducts an enterprise under its own business name and is not any other commercial partnership. All the legal definitions of partnerships use the term "the conduct of an enterprise" including the whole business activity, both employed and professional, which is conducted in an organized and constant way. Important constituents (essentialia negotii) of a recorded partnership deed are: partners undertake to pursue a common objective to be attained by making contributions and, where the partnership or company deed or articles so provide, by cooperating in another manner specified therein, the conduct of an enterprise under its own business name and an agreement between the partners on the subject of activity38.
Pursuant to Art. 86 paragraph 1 of the CCC, a professional partnership shall be a partnership formed by partners with the purpose of practising a liberal profession in a partnership conducting an