Under the corporate reactive fault model corporations should be reproached for failing to react to offences. This model shows its concrete relevance in pre-trial diversion practices (Deferred Prosecution Agreements), through which corporate culpability refers to the reaction to offences. This negotiated approach has a distorted effect, id est an indulgent neo-liberalistic policy. Nevertheless, the ex post approach could be useful when enterprises deal with risks coming from scientific-technological progress (eg food safety and GMOs; health safety and pharmaceuticals; environmental protection and pathogenic agents). If harm occurs to consumers, workers or the environment as a result of these risks, corporations should not be condemned for the harm because of the lack of predictability and avoidability behind prevention. However, because the harmful event increases the knowledge of risks, corporations could be charged if they do not react adequately to this event. Therefore, given the importance of scientific and technological advancements, reactive fault could be the new frontier of corporate criminal liability. More generally, the reactive fault can work properly as charge criterion in all the cases in which there is a lack of specific rules of conduct that can usefully guide, ex ante, the enterprise in fulfilling the duty of preventive organization.

Reactive fault: The "new" frontier in corporate criminal liability

Amalia Orsina
2018

Abstract

Under the corporate reactive fault model corporations should be reproached for failing to react to offences. This model shows its concrete relevance in pre-trial diversion practices (Deferred Prosecution Agreements), through which corporate culpability refers to the reaction to offences. This negotiated approach has a distorted effect, id est an indulgent neo-liberalistic policy. Nevertheless, the ex post approach could be useful when enterprises deal with risks coming from scientific-technological progress (eg food safety and GMOs; health safety and pharmaceuticals; environmental protection and pathogenic agents). If harm occurs to consumers, workers or the environment as a result of these risks, corporations should not be condemned for the harm because of the lack of predictability and avoidability behind prevention. However, because the harmful event increases the knowledge of risks, corporations could be charged if they do not react adequately to this event. Therefore, given the importance of scientific and technological advancements, reactive fault could be the new frontier of corporate criminal liability. More generally, the reactive fault can work properly as charge criterion in all the cases in which there is a lack of specific rules of conduct that can usefully guide, ex ante, the enterprise in fulfilling the duty of preventive organization.
corporate blameworthiness, organizational fault, reactive fault, scientific advancements, rules of conduct
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/20.500.11769/367319
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