Chronicle Of Punishing The ‘Mal-Fiction’ Behind The Fictitious Entity: From Evolution To Future Of Corporate Criminal Liability
- IJLLR Journal
- 6 minutes ago
- 1 min read
Yashita Parekh, Mahindra University
ABSTRACT
At the intersection of corporate criminal liability and criminal law, there is a tension between the requirement of mens rea (guilty mind) and the reality that corporations do not commit crimes (lack mens rea) on their own. This article traces the genealogy of corporate criminal liability through the United Kingdom, United States, India and Australia since the notion of corporations being incapable of committing crimes, societas delinquere non potest, through the identification doctrine to the Standard Chartered and Iridium doctrine in India. It also highlights that through vicarious liability, the identification doctrine, aggregation theory, and corporate culture theory have been, to varying degrees of success, trying to ascribe corporate criminal liability to an artificial person. The article details several continuing fault lines in this area, i.e., the difficulty in obtaining evidence showing mens rea, deferred prosecution agreements that provide convenience at the expense of accountability, and differing jurisdictions. The conclusion spotlights that artificial intelligence is creating a paradigm shift from punitive intent to preventing failure of system architecture and will result in the Hybrid Failure to Prevent Model being the next evolutionary phase of the doctrine of corporate criminal liability.
