Summary

The criminal liability of legal persons has already been in effect in Estonia for over three years. During this time the courts, especially the Supreme Court, have made a serious contribution in the interpretation and further development of the principles expressed in the Penal Code, particularly as regards the connections in the obligations of a legal person and its leading employee or body.

It can be seen from the cases used in the article that problems in a misdemeanour procedure are caused by the requirement to ascertain the leading employee or member of a body who has carried out the act. It is frequently a matter of a violation of the supervisory obligation – i.e. in the form of an inaction – and it is not clear how the obligations of the management board and the other leading employees are divided in a specific company. The requirement to clarify the leading employee in each case seems to be inexpedient for the point of view of the efficiency of the proceedings, since it is often a case of minor violations. At the same time, retreating from the principle of wrongful responsibility is not acceptable. In order to avoid this, attention should definitely be drawn to the possibility of the obligation of the legal person based on a leading employee not fulfilling a supervisory and control obligation. Based on the Penal Code and the current court practice, however, this would remain an uncertain possibility, particularly in the case of formal delicts.

Implementing the criteria for the interest of the legal person may also offer challenges to the courts. However, it does currently seem that court practice has chosen the path of wider interpretation, requiring a tie with the action of the legal person, and also that the act must not be carried out merely in the self-interest of the leading employee.