The former distinction between misdemeanours and administrative offences of legal persons is now a thing of the past. The current legislation has simplified and clarified this area. As a result, we have now seen the unification of all these categories under the single term ‘offence’. However, it is still the case that offences can also be committed by natural persons and legal entities. Which offences are involved?
Legal persons are granted legal personality from their creation until their dissolution. During this period, a legal person may perform legal acts, acquire rights and obligations and act unlawfully. The liability of a legal person for an offence is conceived as strict liability. This is a significant difference from the liability of a natural (non-business) person and means that fault is not considered here.
Tip: What is an offence, what are its features, when can a natural person who is not an entrepreneur be an offender? We have discussed this in more detail in our blog article.
Liability of a legal person for an offence therefore arises if the following conditions are met:
Have you received a fine or summons?
The penalties can be high and it is not worth going through the process without consulting or being represented by a lawyer. Careful reasoning also pays off if you want to draw attention to someone else’s offence.
The offences that apply to legal persons are either directly stated in the law in this way, i.e. in the sense of “a legal person commits an offence by…”, or the obligation is imposed by the law in general, but may also apply to a legal person, which usually follows from other provisions of the law.
Conduct attributable to a legal person means the conduct of certain natural persons who are responsible for either the management or the operation of the legal person. At the same time, however, it is not necessary to know their identity; it is not examined whether the conduct was culpable or not.
Example: under the Consumer Protection Act, a seller commits an offence by failing to indicate the destination and date of delivery on the proof of purchase of a product in the case of a sale with subsequent delivery. If the insufficient document is secured in this way, the employee who issued it is not identified for the purposes of punishing the offence. A fine may be imposed only on the basis that it is apparent that the document was issued by the legal person concerned. Whether an internal investigation is subsequently carried out and, for example, the employee’s liability for damages is inferred from the situation is completely irrelevant to the offence.
Similar examples could be the serving of alcohol to minors in a restaurant, etc.
The Misdemeanour Act provides an exhaustive list of persons whose conduct is imputable to a legal person for the purposes of misdemeanour law. This is a rather broad list, which includes the following persons:
The breach of duty occurred in the course of the activities of the legal person, in direct connection with the activities of the legal person or for the benefit of the legal person or in its interest.
In contrast to the previous case, we can imagine a situation where the managing director of a company commits a traffic offence in his personal car and at his leisure, which is in no way related to the activities of the legal person. He will therefore be liable for it as a natural person.
All of the above conditions must be met for the liability of a legal person to arise.
Tip: How do the offence proceedings work? How does it differ from criminal proceedings and why is it worth being represented by a lawyer? We have described everything in detail in our article.
The Act on Misdemeanours introduces an interesting concept of concurrent liability, according to which separate proceedings can be conducted on the liability of a legal entity and a natural person for the same offence. This is not a violation of the principle of double punishment for one act, precisely because the subject is different each time.
However, a legal person may be exonerated from liability for an offence if it proves that it made all the efforts that could be required of it to prevent the offence. As an example, in the explanatory memorandum the legislator mentioned various preventive measures, training and checks on employees.
An entrepreneurial natural person can typically be thought of as a sole trader or a natural person in a similar position. Liability is again (as with a legal person) conceived as objective, i.e. irrespective of fault. It is therefore irrelevant whether the offence was committed intentionally or negligently. This is the fundamental difference between the assessment of offences committed by natural persons engaged in business and those not engaged in business.
The following conditions must be met:
Hint: Read also how corporate criminal liability works and how corporate punishment works.
Theoretically, we can also imagine a situation where a sole trader has committed a certain act, which has the characteristics of an offence of a natural entrepreneur, but outside the context of his business. However, the law regulates the relevant facts exclusively for natural persons engaged in business. In such a case, an act committed by a natural person engaged in business outside the context of his business would not be punishable.
A person whose conduct is attributable to an entrepreneurial person is deemed to be a person under the Offences Act:
An entrepreneurial natural person shall not be liable for an offence if he proves that he has made all the efforts that could be required of him to prevent the offence.
As in the case of natural (non-business) persons, circumstances precluding unlawfulness may apply to business persons and legal persons. These include necessary defence, extreme necessity, the consent of the injured party, the legitimate use of a weapon, and permissible risk.
Have you received a penalty or summons? The penalties can be high and it is not worth going through the process without consulting an attorney. Careful reasoning also pays off if you want to draw attention to someone else’s offence.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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