EVOLUŢIA ISTORICĂ A PERSOANEI JURIDICE SUB ASPECTUL RESPONSABILITĂŢII EI

Violeta COJOCARU, Tudor ULIANOVSCHI Catedra Drept Internaţional şi Drept al Relaţiilor Economice Externe

Rezumat

According to the doctrine on this matter, the legal person is defined as being the collective subject of law, meaning a group of people, which, fulfilling conditions required by law is entitled of subjective rights and civilian liabilities. The component elements of the legal person are self-organization, a distinct property ownership and a strictly definite objective, determined in agreement with the general interest of the group. In principle, every branch of the law regulates a specific form of liability, giving, therefore, the premises for a large variety of types of liabilities: political liability (i.e. constitutional parliamentary liability), civil liability, criminal liability, administrative, and others. In order for the legal liability to occur, there is a need for a cumulative existence of certain pre-conditions: the illegal act, the socially endangering result, guilt and the link between the act and the result. In the course of time, there have been various approaches to the legal person and its liability. Hence, the main argument of the classic approach was in favour of non-liability of the legal person and put the grounds of the fiction theory of legal persons in the civil law. According to this theory the only true subject of law can be the human being, thus making legal persons fictive subjects, which could not have been liable in civil law. Eventually, the fiction theory has been abandoned and another theory was developed – the reality theory. This approach was based upon the criminal and civil liability of legal persons. In this case, the roman private law regulated that a legal person could only commit illegal acts, but also envisioned special penalties for them. The classic private Roman law distinguished between the rights and obligations of corporations and its members separately. De facto, the illegal action imputed to the victim was not directed toward the author of the illegal act, but also against the entity that has profited behind the act. In this case, the victim could have been a corporation, in order to get the reparation of damages. The distinction made by the jurisconsulti between the rights and obligations of a corporation and its members, represented a turning point for the creation of a notion of civil and criminal liability of legal persons in the following centuries, which formed the basics of the Roman-German law system. From the legislative perspective, the most important legal norm before the French Revolution, which regulated the institute of a legal person, was the French „Ordonance” regarding the civil and criminal justice from 1670, which codifies the French best practices in the 17th century and confirms the modern theory, according to which legal persons can commit illegal acts and be sanctioned for doing them. These principles of the 1670 Ordinance have governed the matter of civil and criminal liability of legal persons until the French Revolution of 1789, in accordance with the majoritarian doctrine, which continued to plead for the principle of liability of legal persons, generated by the reality theory of a legal person (also known as the organic theory). E. Zitelmann considered the legal person has a common will composed by the wills of each of its members, „the body of a person being an irrelevant feature for its personality, this depending solely on the efficiency of its owned will” The civilist theories with regards to the legal nature of collective entities have also had an effect on the criminal doctrine, which brought back the discussion of the matter of their criminal liabilities. In this sense, the theory of real personality of associations, developed by Gierke, which considered legal persons as capable of both will and action, constituted a strong fundament for certain authors, who, against the dominant doctrines of their time, have tried to accredit the idea of criminal liability of legal persons (F. Von. Liszt, A. Mestre, E. Hafterm, R. Busch, etc.). The issue of criminal and civil liability of the legal persons was included on the working agenda of several international fora. Hence, in the Criminal Anthropology Congress of 1892, in Brussels, G. Tarde tried to demonstrate that the expansion of the association phenomenon will further determine the solidarity of any nature between the illegal act and its liability. An important moment in this sense was brought up during the Congress of the International Criminal Law Association in Bucharest, in 1929, an association which was founded by the well-known practitioner of Romania - Vespasian Pella. The resolution adopted at the aforementioned Congress stated that „considering that the legal order of any society could be greatly affected when the activity of a legal person constitutes a violation of criminal law”, has recommended the establishment in the domestic legal system of certain efficient measures of social defense against legal persons, in case of illegal acts oriented towards the satisfaction of collective interest of these persons. At the same time, this document stated the point of view that the application of this measure of social defense must not exclude the possibility of engaging of the individual criminal and civil liability, for the same illegal act, of the individuals that have administrative functions in the legal persons, or who have committed the illegal act using tools provided by the legal person.