Resumen de Weaknesses in spanish jurisprudence on the criminal liability of legal entities: non-imputability of certain legal entities and lack of methodology when applying the transfer of criminal liability between corporations
Systems theory has been criticized in literature on the analysis of organizations and groups of people. Its weaknesses include the lack of ontological support and the absence of evidence demonstrating the validity of its premises. Since Spain incorporated the criminal liability of legal entities into its criminal code as a means of combating corporate crime and corruption, however, the Spanish Supreme Court has been resorting to systems theory to determine when a legal person should be punished.
This article analyzes the serious practical problems that this approach entails, especially when certain complex legal-criminal issues are being dealt with. In addition to the conflicts that arise concerning the principle of legality, systems theory lacks a solid methodology to resolve two questions that emerge in corporate reality: 1) determination of the non-liability of certain legal entities, and 2) clarification of the (in)appropriateness of the criminal punishment of legal persons resulting from and arising out of mergers and acquisitions (M&A transactions). These aspects undoubtedly affect the necessary legal certainty that must exist in the corporate context.
