La responsabilidad de las personas jurídicas en el sistema de juzgamiento ecuatoriano

Abstract

The classic theory when teaching criminal law said that the human being is the only possible criminal imputation, based on almost a mantra: societas delinquere non potest. (Gomez-Jara, 2016). Traditionally, the criminal liability of legal persons was denied based on three arguments; societies do not have the capacity to act; they also have no capacity for guilt; and equally, they lack the capacity to suffer penalties, which leads the classical systems to punish only natural persons as authors. (Gonzales, 2012, page 79). The new horizons of Criminal Law pursue the criminality of collective entities (Gómez, 2014). The present work seeks to understand the scheme on the determination of the liability of legal persons in the Ecuadorian judiciary system, in addition to analyzing the technical difficulties that arise in the face of this determination and its criminal prosecution, with a precise vision in the Ecuadorian state from of the normative budget introduced with the Organic Comprehensive Penal Code (2014) and the model of criminal responsibility that is intended to be applied (heterorresponsibility vs. self-responsibility). In addition, the present work as a comparative law reviews criminal legislation on the subject of other countries and is strengthened by reviewing jurisprudence of supreme courts of other jurisdictions. The criminal prosecution of legal persons and the procedural principles that are applicable to them is one of the central issues on which this work focuses. (Castillejo, 2012); beginning with understanding that it is not the same to judge a natural person, that, a legal person. It is unavoidable to study the Ecuadorian criminal trial system and its feasibility to apply it against a legal person, seeking as a consequence the determination of criminal responsibility and therefore a conviction. It is necessary to be able to determine the model of criminal responsibility for collective entities in order to determine the trial process or the scope that rights have in their favor. In this perspective there are two major paths that can be chosen, either the vicarial model or transfer of criminal responsibility of natural persons to collective entities; or the model of autonomous responsibility that seeks to criminally judge a juridical person for its own unjust juridical autonomy and different from the one committed by the natural person. The present work raises if the rights and principles such as the presumption of innocence, right to due process, legal security can or should be applied in defense of collective entities subject to a process that determines criminal responsibility.