The Dilemma of Corporate Criminal Liability – New Regulatory Attempts in Poland

Due to the continuously growing powers of corporate actors, the increasing harms they cause, and the difficulties to identify the responsible individual, in order to place the responsibility where it belongs, the vast majority of western democratic jurisdictions added the criminal or quasi-criminal liability of legal entities (CCL) to their legal systems. Poland introduced CCL in 2002, after a very short legislation process. It was seen as crucial for the European integration. Since its enactment, the Law on Liability of Legal Entities for Acts punishable under Criminal Law has been heavily criticized and amended a dozen times. At the time of writing, Polish legislator is planning to introduce a much stricter law on corporate criminal liability. In the view of upcoming fundamental reform of the CCL in Poland, this paper revisits the dilemma of corporate criminal liability as a regulatory response to corporate wrongdoing. The CCL laws usually shaped by the struggle between challenges of globalization on the one hand, and the notion of free market economy reinforced by the dogmatic arguments of individual criminal law on the other, are rarely used in practice. The attempts to place the responsibility on the corporation as the main beneficiary of the corporate harm, without identifying individual perpetrator often fail. At the same time CCL may create a second corporate veil that enables the responsible individuals to hide behind the complex corporate decision structures, thereby allowing them to avoid personal responsibility. The analysis of the emergence and development of CCL laws in Poland enable to reflect on the challenges of criminal law in regulating the corporate wrongdoing. This paper draws empirically from analysis of legislative documents pertaining CCL laws in Poland and the results of court research conducted in 13 selected district courts in Poland.