Objective criteria of corporate guilt, Subjective...

6.2.6. Objective criteria of corporate guilt

Identification of signs of corporate guilt is always associated with the establishment of qualifying criteria defined by Part 2 of Art. 2.1 of the Administrative Code. Objective criteria of corporate guilt include the establishment of signs and circumstances that confirm the fact of the offense. To identify the sign of the harmfulness of the offense, the public official must prove the existence of property damage, moral, bodily harm caused to an individual or reputational harm caused to the organization. Identification of such signs is necessary only in relation to the material composition of administrative offenses, that is, such administrative procedures are inevitable only in cases where the qualification of an offense is due to its harmfulness, i.e., is associated with causing property damage or non-material damage to law-enforceable interests, for example, the composition of misdemeanors encroaching on the lawful interests of the owner, material compositions are provided only in every fifth case (compare with part 1 to 3 with . 7.2, 7.7, 7.9, ch. 2 v. 7.15, 7.17, ch. 1, 2 tbsp. 7.21, 7.22, 7.26, 7.27 CAO). The same relation is inherent in other chapters of Sec. II The special part of the Code of Administrative Offenses, in any case, the total number of material compositions is always inferior in their numerical fixation to formal compositions. The provisions of the Code of Administrative Offenses establishing the composition of administrative offenses are largely formalized, the legislator does not link the establishment of signs of misconduct with the onset of significant consequences of the act, on the contrary, in most cases the very fact of violation of norms and rules is qualified as an offense, regardless of its consequences.

The presence of such consequences is taken into account when the judge makes a decision on the degree of encumbrance of administrative punishment, in any case, it must be commensurate with the harmfulness of the consequences of the act.

6.2.7. Subjective criteria of corporate action

The existence of objective criteria of corporate guilt is not enough for the qualification of the offense, an imputation of a legal entity is possible only if the objective and subjective criteria of guilt are determined causally. To establish the subjective criteria of the guilty act, the public official must prove the possibility of legitimate activities of the organization, that is, in this case the official is obliged to establish the reasons for the illegal activity of the organization. Thus, the initial procedural action for the qualification of guilt is always the establishment of objective criteria for misconduct, for the recording of subjective criteria, it is necessary to obtain and study evidence, if there is evidence to prove the inevitability of the offense, the qualification of the offense is impossible, since in this case there are no subjective criteria for guilt. In order to establish such criteria, representatives of a legal entity must provide evidence of facts and circumstances that are incompatible with their lawful activities, mainly they are conditioned by the power activity and are related to the existence of public relations of the organization with the executive, judicial authorities, municipal bodies or their officials persons. Qualification of subjective criteria of guilt is impossible if the fact of the offense is caused by the illegal activity of a state authority or a municipal body. Intentional acts of this kind include an illegal claim of property or non-material benefits or advantages, in these cases the act is due to the corruption claims of public authorities. The submission of evidence by the organization that indicates the inevitability of a misdemeanor under these conditions, and their subsequent positive assessment by the judge, entails the latter's decision to terminate the proceedings in the corporate offense case. In this case, the subjective criteria for guilt are not established, and public prosecution is terminated even in the presence of objective harmful consequences. Property damage or non-material damage caused by an organization is an inevitable consequence of an offense caused by the illegal activities of public authorities - the perpetrators of harm, the organization in this case is the injured party.

An offense can be a remote consequence of improper actions of the executive authority or its inaction, for example, an organization's unlawful refusal to issue a license or other authorization document may provoke it to license-free activities. In any case, it is necessary to establish a causal link between the illegal action of the public authority and the fact of the offense attributed to the organization's responsibility.

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