Criminal Liability of Legal Entities from a Comparative law Perspective

Subjects and scope of the thesis The research subjects of the thesis are theoretical and practical foundations/rationales for legal regulations regarding the criminal liability of legal

INTRODUCTION

1 Rationale of the thesis

A legal entity is often referred to as an independent entity or an

"existence-being" that possesses separate legal rights and responsibilities The legal entities can participate in many social relations as well as give rise

to many different types of legal liabilities, including criminal liability The Penal Code of Vietnam 2015, amended in 2017, has recognized the criminal liability of commercial legal entities to resolve legal issues arising in relation

to this legal subject However, these regulations appear to contain many limitations, leading to difficulties during their practical applications However, these regulations appear to contain many limitations, leading to difficulties during their practical applications It requires the legislators to continue amending the regulations of the Penal Code to overcome those shortcomings and to meet the expected theoretical and practical requirements Moreover, to ensure rationality and feasibility, the proposed adjustments and amendments to the regulations regarding legal entities’ criminal liabilities should be based on the legislative experiences of countries around the world Therefore, it is necessary to conduct systematic and comprehensive research on the legal provisions regarding criminal liability

of legal entities from a comparative law perspective From such a point, the

author decided to do the doctoral thesis on the topic of “Criminal Liability

of Legal Entities from a Comparative law Perspective”

2 Research goals and purposes

The research purpose of this thesis is to propose recommendations

to improve regulations of the Vietnam Penal Code regarding legal entities' criminal liability To achieve that goal, this thesis will focus on the following tasks: (1) Clarifying general theoretical aspects of criminal liability regarding legal entities and providing a comparative study on criminal liability of legal entities; (2) Analyzing and comparing criminal regulations regarding the criminal liability of legal entities of Vietnam, France, the United Kingdom, and Singapore based on five comparative components; (3) provide recommendations to improve the regulations of the Vietnam Penal Code regarding criminal liability of legal entities

3 Subjects and scope of the thesis

The research subjects of the thesis are theoretical and practical foundations/rationales for legal regulations regarding the criminal liability of legal entities of the 4 above mention countries

Regarding the scope of research: The thesis will approach from the perspective of comparative criminal law with the following contents: (1) types or categories of legal entities are subjected to criminal liability; (2) the scope and conditions for criminal liability; (3) system of criminal punishments/penalties for legal entities and other issues related to the criminal justice diversion measures for legal entities that are subjected to criminal liability Countries that are being selected for comparison include Vietnam, France, the United Kingdom, and Singapore with their legal documents currently in effect

4 Research methods of the thesis

The comparative method will be the main research method of this thesis Also, many other methods are in used, including analysis, synthesis,

5 Scientific contributions of the thesis

Within this thesis, criminal liability of legal entity will be reached through comparative law perspective, and therefore, it is expected to generate scientific and practical contributions to the society The thesis has managed

to (1) clarify the nature and rationale to impose criminal liability upon legal entity, (2) point out theoretical legal aspects of the criminal liability of legal entity By comparing the current in effect regulations regarding criminal liability of legal entity within the 4 above mentioned countries, the thesis has also managed to propose recommendations to improve Vietnam criminal law's regulations on the legal entities' criminal liability The thesis will be a valuable reference for undergraduate, graduate students as well as for legal scholar, legislators and law practitioners

6 Structure of the thesis

In addition to the introduction, literature review, conclusion, bibliography, and appendices, the main content of the thesis is structured into

Overall literature review Within the field of the thesis

1 General literature review related to the thesis topic

Domestic and foreign researches regarding criminal liability of legal entities are classified into three groups as follows:

- Research on the theoretical rationale or basis for imposing criminal liability upon legal entities Those researches are conducted at many different levels, from multiple approaches including historical approach, comparative approach,

- Research on the practical basis for criminal liability prosecution upon legal entities has clearly indicated the specific contents that need to be regulated: types of legal entities subject to criminal liability, scope, and conditions for criminal liability prosecution of legal entities, and punishments against legal entities

- Research on other contents related to the criminal liability of legal entities as follows: (1) researching criminal regulations and practical application of national criminal laws worldwide; (2) researching advanced points on the criminal liability of commercial legal entities according to the criminal law of Vietnam; (3) researching on limitations of the criminal law

of Vietnam regarding the criminal liability of commercial legal entities, and proposing legal improvements

2 Evaluation of the literature review

2.1 Knowledge inheritance

The thesis has inherited many scientific results from previous research, such as (1) inheriting the theoretical basis of recognizing criminal liability upon legal entities; (2) acknowledging the necessity of imposing criminal liability upon legal entities, however, the specific regulations should

be based on the choice, criminal policy and actual circumstances of each nations; (3) considering the results of previous research on limitations of criminal laws regarding criminal liability of legal entity

2.2 Ongoing issues to be researched in the thesis

The ongoing issues that the thesis can continue to research include: (1) Clarifying the nature of criminal liability upon legal entities on the theoretical and practical basis for such regulations in different countries; (2) Identifying related issues that need to be regulated, and proposing recommendations to overcome legislative technique limitations regarding regulations of criminal liability of commercial legal entities in Vietnam; (4)

acquiring legislative experience from nations worldwide to propose solutions

to overcome limitations of the related regulations, and to ensure the feasibility and effectiveness of applying and implementing the related regulations

3 Research question and hypothesis

3.1 Research question

- What is the basis for imposing regulations regarding criminal liability on legal entities?

- What is the nature of regulating criminal liability on legal entities?

- Are the legal regulations on criminal liability of legal entities in the criminal laws of the researched countries similar, different, or both similar and different at the same time? And why do such differences and similarities exist?

- What experiences can Vietnam refer to to improve and enhance its regulations regarding the criminal liability of legal entities?

3.2 Research hypothesis

- Regulating the criminal liability of legal entities is necessary and the adoption of such regulations can be based on the theoretical which are theories or doctrines on the criminal liability of legal entities, and practical basis upon countries' practices

- The nature of recognizing the criminal liability of legal entities is to add another subject, additional to natural persons, which must bear criminal liability

- Countries' regulations worldwide regarding the criminal liability of legal entities share several common aspects They all point out: (1) the types

of which the legal entities must bear criminal liability; (2) the scope and conditions to which the legal entities bear criminal liability; (3) the system of punishments and other criminal justice diversion measures that will be placed upon legal entities These regulations have been adopted based on common doctrines regarding the criminal liability of legal entities Thus, there will exist similarities between the regulations of each country, however, the regulations of each country will contain different features of their own depending on their criminal policy, as well as their political and economic circumstances,

- Experiences in adopting regulations regarding the criminal liability

of legal entities from countries around the world will help Vietnam improve and enhance its laws on the same issues

RESEARCH RESULTS

Chapter 1

THEORETICAL ASPECTS REGARDING THE CRIMINAL LIABILITY OF LEGAL ENTITIES AND COMPARATIVE STUDY TOWARDS THE CRIMINAL LIABILITY OF LEGAL ENTITIES 1.1 Criminal liability of legal entities – Concept, nature and content of its regulations

1.1.1 The concept of criminal liability of legal entities

Criminal liability can be understood as detrimental legal consequences that the State imposes on legal entities for criminal acts committed by individuals when certain conditions are satisfied

The criminal liability of legal entities entails certain features as follows: (1) It is the adverse or detrimental legal consequences that a legal entity incurs When certain conditions are met, it will give rise to the criminal liability of legal entity; (2) Criminal liability only arises when the conditions

to impose such liability are satisfied; (3) The state imposes criminal liability and determines such liability by particular procedure regulated by the laws through the conducts of procedural agencies Finally, criminal liability is well-reflected within the court's effective decisions or judgments; (4) Criminal liability is expressed in reality through the most extreme coercive measures, namely penalties

1.1.2 Nature and the contents of regulating criminal liability of legal entities

1.1.2.1 The nature of regulating the criminal liability of legal entities

In essence, legal entities do not conduct or commit the crime themselves Legal entities are considered to "commit or conduct the crime" due to their special relation with the subject of the crime which is the individual (or person) When certain conditions are satisfied, criminal liability may arise against legal entities, and it does not exclude the criminal liability of the individual related to the legal entity that committed the crime Thus, recognizing the criminal liability of the legal entities, in nature, is the expansion on the subject to criminal liability besides the traditional subject of criminal liability, which is the individual

1.1.2.2 Contents of regulating the criminal liability of legal entities

The content of the regulations on legal entities will consist of several key issues regarding the determination of the criminal liability of legal entities, including: (1) regulating the scope of legal entities that might be

subjected to criminal liability; (2) regulating the range of crimes for which legal entities might be subjected to criminal liability; (3) regulating the conditions on which the legal entities shall incur criminal liability; (4) regulating criminal punishments against the legal entities that bear criminal liability, including penalties and non-criminal punishments/measures that shall apply particularly to legal entities Each country needs to develop and regulate strictly its punishments to suit them with the features of legal entities Therefore, to guarantee the purposes of criminal punishments which are to educate and prevent crimes, different types of punishments should be introduced, including fines, bans on operation, bans on capital mobilization, etc

1.2 Theories on criminal liability of legal entities in the world

1.2.1 The Identification liability theory

This doctrine originated in the UK around a century ago and was found very early in the House of Lords' decision on the case of "Lennard's Carrying Company Ltd vs Asiatic Petroleum Company Ltd" in 1915 The English courts have developed the criminal liability of legal entities based on the identification theory (also known as Attribution or Alter Ego theory) The theory identifies the mind of the legal entities with the mind of the legal entities' representative and identifies the criminal act of the legal entities with the criminal act of the legal entities' representative to determine the criminal liability of legal entities According to this theory, a legal entity is only subject

to criminal liability for the criminal acts of its legal representatives, who have the full authority to decide all aspects or issues related to that legal entity The necessary and sufficient conditions to pursue criminal liability of legal entities are: (1) The criminal acts belong to the person who commands, directs, manages, and operates the legal entity, and such acts were done on behalf of the legal entity; (2) The crime is committed for the benefit of that legal entity

1.2.2 The Vicarious liability theory

This theory imposes the liability upon the head of a legal entity or organization for the acts of its employees or agents According to this, a legal entity will be held accountable for shall bear criminal liability when its managers, employees, or workers conduct criminal acts In this case, the conditions to pursue criminal liability of legal entities are: (1) the criminal act was conducted within the scope of that person's employment, and the act was conducted for the benefit of that legal entity By applying the Vicarious

liability doctrine, legal entities might be held liable for a wider range of subjects who conducted criminal acts than applying the identification liability theory

1.2.3 The Culture/system theory

In comparison with the above-mentioned theories, the culture theory has only been developed recently The culture theory determines the criminal liability of a legal entity by evaluating the legal entity's cultural issues and the implementation of such regulations in practice According to this doctrine, three elements must be satisfied to determine the criminal liability of legal entities: (1) there must be a criminal act conducted by an employee of the legal entity; (2) the employee acts within the scope of his/her employment or authorization; (3) through the legal entity's culture, there is evidence that the employee who committed the criminal act was aware that the legal entity had directed, supported, or hadn't opposed the act that he or she committed, or hadn't created and maintained a culture of respecting and obeying the law within that legal entity

1.3 Theoretical issues regarding comparative research on the criminal liability of legal entities

1.3.1 The necessity for comparative research on the criminal liability of legal entities

Comparative research is an appropriate solution to improve the current law based on learning from legislative experience, legal application, and implementation from countries around the world

- Comparative study on criminal law is extremely important in helping countries study from each other's legislative experiences and respond

to newly discovered types of criminal acts

- Comparing the compatibility of the criminal law of a country with the international standards will help harmonize the law, creating a suitable background for international cooperation in fighting crime, especially international crimes

- Comparative research is an effective solution for countries around the world to shorten their legislation path Furthermore, absorbing legislative achievements and law applications of other countries will save time, financial resources, and other forces

1.3.2 Major approaching trends in comparative research towards the criminal liability of legal entities

The criminal liability of legal entities is an issue that legal scholars around the world are interested in researching, including researching from the comparative law perspective From the comparative law perspective, it can be divided into several major research trends as follows: (1) the trend of explaining the differences between countries' decisions (of different legal traditions) to regulate or not regulate criminal liability on legal entities; (2) the trend of identifying the similarities and differences regarding the criminal liability of legal entities in countries around the world; (3) the trend of identifying and explaining the influences of doctrines or regulations of a country regarding the legal entities' criminal liability upon other countries; (4) the trend of harmonizing regulations regarding the criminal liability of legal entities

1.3.3 The comparative approach to criminal liability of legal entities in the thesis

The thesis decided to approach from the comparative research perspective of harmonizing the criminal liability of legal entities The thesis moves towards the direction of discovering the similarities and differences in the criminal regulations of countries worldwide and explaining these similarities and differences At the same time, the thesis aims to learn from these legislative experiences to improve Vietnam's criminal regulations, harmonizing its regulations with the general international legal trend and the regulations of countries within its region and worldwide

1.3.3.1 Obbject of the comparative research

The subject of this comparative research is the legal regime regarding the criminal liability of legal entities, including the regulations of different legal traditions (e.g common law tradition, civil law tradition) on this issue The criminal liability regulations of legal entities shall be compare according to each specific comparative research object including: (1) the types of legal entities subject to criminal liability; (2) the scope of criminal liability of legal entities; (3) the conditions of criminal liability of legal entities; (4) the system of punishments; (5) the diversion measures that will

be imposed on legal entities

- Evaluate the superiority of the foreign regulations regarding criminal liability of legal entities

- Allow Vietnam integrating its laws better, achieving the goal of harmonizing its criminal regulations regarding the criminal liability of legal entities

1.3.3.3 Comparison aspects

The thesis' comparative research regarding the criminal liability of legal entities is based on three comparison aspects as follows: (1) Content of provisons; (2) Legislative techniques when stipulating; (3) Sources of legal regulations

During the comparison, the specific comparative research objects will be evaluated according to the three comparison aspects mentioned above

Chapter 2

COMPARISON ON THE STUDIED COUNTRIES'

REGULATIONS REGARDING CRIMINAL LIABILITY OF

LEGAL ENTITIES 2.1 Types of legal entities subject to criminal liability from a comparative perspective

2.1.1 Types of legal entities subjected to criminal liability according to Vietnam's criminal regulations

In Vietnam, only two potential types of legal entities might be subjected to criminal liability, including commercial legal entities and foreign legal entities Commercial legal entities are understood as legal entities whose sole purpose is to seek profits that will be divided among the legal entities' members Commercial legal entities include corporations (or companies), and economic organizations that are established, operated, and terminated according to Vietnam Civil Law, Law on Enterprises, and other related laws

2.1.2 Types of legal entities subject to criminal liability according

to France’s criminal regulations

According to Article 121-2 of the French Penal Code, all categories

of legal entities might be subjected to criminal liability, including enterprises, non-profit organizations, and even some organizations controlled by the Government and the State, with an exception that is the State In some circumstances, local governments and their associations are also subject to criminal liabilities due to violations during their operations Legal entities in France are as follows: Legal entities according to civil laws, legal entities according to public laws and foreign legal entities Criminal liability is not imposed on organizations without legal status, including organizations that haven't registered with competent authorities or are in the establishment process

2.1.3 Types of legal entities subject to criminal liability according

to the UK’s criminal regulations

The UK is the first country in the world to recognize the criminal liability of legal entities and has issued many laws regarding this In the UK, all types of legal entities might be subjected to criminal liability, including governmental agencies, associations, state-owned and private limited liability companies, incorporated companies, UK companies, and foreign

companies in some cases Organizations on different scales, operating for profit or non-profit, parent companies, and their subsidiaries might also be subjected to criminal liability when they satisfy the conditions for criminal liability prosecution

2.1.4 Types of legal entities subject to criminal liability according

to Singapore’s criminal regulations

In Singapore, all types of organizations, whether having legal status

or not, and foreign legal entities are all subject to criminal liability Article 11

of the Singaporean Penal Code explains the term "any person" to be understood as "any companies, associations or individuals" This regulation

is considered a fundamental principle of Singaporean criminal law, stipulating that all organizations and individuals are subject to criminal liability At the same time, Article 2(1) of the Interpretation Act of 1965, amended in 2022, also stipulates the terms "person" and "party" are understood as companies, associations, or individuals, with or without legal status, unless otherwise regulated directly or indirectly

2.1.5 Comparison evaluation

First, regarding the substance of the regulations on the types of legal entities subject to criminal liability, all four countries stipulate that entities with legal status shall incur criminal liability, including foreign legal entities One difference is that the types of legal entities subject to criminal liability in France, England, and Singapore are more diverse than in Vietnam

Second, regarding legislative techniques used to regulate the types

of legal entities subject to criminal liability, all four countries directly stipulate the types of legal entities subject to criminal liability in their laws

In addition, France is the only country to (1) exclude the State's criminal liability, and (2) limit the scope of criminal liability prosecution against the local authorities

Third, regarding the sources of law regulating types of legal entities subject to criminal liability, all four countries use written laws to stipulate this issue However, in each country, legal documents to be considered as the source of law regarding this issue are not the same In Vietnam and France, these regulations are embedded within the Penal Code In the UK and Singapore, criminal liability of legal entities is recognized within different specialized laws

2.2 The scope of criminal liability for legal entities from a comparative perspective