La culpabilidad de las personas jurídicas en el sistema penal colombiano ¿una propuesta garantista?

Abstract

In modern post-industrial society, legal entities have acquired a preponderant role, since, by intervening more and more strongly in economic relations, they have become its decisive protagonist. This has led to the development of novel forms of crime that are found in legal persons at their epicenter, a situation that demands from the States the adoption of effective mechanisms to combat it, in order to prosecute individuals who commit any of these innovative crimes, to the legal persons in whose bosom they are carried out. However, in view of the fact that the elementary categories of criminal law have been constructed for natural persons, vehement dogmatic discussions have taken place on the criminal responsibility of legal persons. Thus, there are those who affirm the validity of the principle societas delinquere non potest, which denies the possibility that legal persons can commit crimes and, consequently, that they can be called criminally respondent. In contrast, other theorists consider that this discussion has already been resolved in the affirmative sense, that is, they postulate that legal persons can commit crimes and that the center of the discussion should be the determination of the grounds of their criminal responsibility. However, establishing a solid concept of culpability predicable only of legal persons has been one of the great challenges that the defenders of this regime have had to face. In this sense, various grounds have been postulated to support a concept of guilt typical of legal persons, some allude to the defective business character, others to the poor conduct of the company's activity over time, a reprehensible social ethics, to the lack of organization, etcetera; theories analyzed in this text with the aim of determining the feasibility of its incorporation into the Colombian legal-criminal system based on the consideration of the principles and guarantees that should guide the exercise of the ius puniendi of the State.