Trust, business ethics and crime prevention – corporate criminal liability in Finland.
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According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons is based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. From the policy point of view the central mechanism is not deterrence but trust. By punishing the corporation, the state tries to tell citizens that no one can violate law without consequences. Social life is crucially based on mutual trust. If someone betrays that trust, a sanctioning system is needed. The punishment demonstrates that anyone acting against the common rules has to pay for this action. The courts have imposed rather modest corporation fines. It is perhaps reasonable to ask what the criminal policy effects of such very lenient sanctions could be. If the fines are low, one could reasonably describe them as little more than “a public morality tax”. This may also contribute to the marginalisation of offences where corporate liability is applied. The use of alternative sanctions (corporate probation, community service) when punishing corporations in Finland has not been discussed so far.
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