Dificultăţi practice privind stabilirea vinovăţiei în cazul răspunderii penale a persoanei juridice
Practical difficulties in establishing guilt in the criminal liability of the legal person

Summary/Abstract: The explicit provision of the legal person criminal liability institution by the Romanian legislator has led to a series of doctrinal disputes on the basis of this form of liability as well as on the possible explanations regarding the mechanisms for engaging the criminal liability of a collective entity. Romanian doctrine, tributary to the principle of subjective criminal liability and to societas delinquere non potest adagium, following the analysis of the art. 135 of the Criminal Code, accepted a subjective foundation, while jurisprudence faced a subjective scheme that was not often understood. The compatibility of the criminal liability of the legal person with the nulla poena sine culpa principle appears necessary and even inevitable. But the attribution of a culpable mental state, a requirement of the crime, to a non-human artificial entity is difficult and demanding, and the motivation of most caselaw solutions, so shy in the field, is questionable and certainly perfectible. By reading both the court decisions and the ordinances or indictments drafted by the prosecutors we observe a certain difficulty in motivating the presence of the subjective element, the judicial bodies being especially concerned with establishing the material element (actus reus) of the offense and with the material imputation of the deed, and less inclined to a distinct analysis of the legal person's subjective state (mens rea). Through this study we try to present some caselaw solutions, drawing attention to the difficulties of arguing the subjective element in the case of the legal person indicted, faced by the judicial bodies.

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