Corporate Criminal Liability and Compliance Management Systems – A Case Study of Spain

Corporate Criminal Liability and Compliance Management Systems – A Case Study of Spain

By: Santiago Wortman Jofre – 

Corporate Criminal Liability has been a matter of debate for quite a long time now, with leaders at the G20, as well as numerous international legal instruments, stating the importance of enacting laws against corporate criminality. One of the main tools against corporate criminality that has been gaining relevance in the last twenty years has been the self-governance strategy of compliance management systems. This work interviews compliance officers in charge of designing, implementing and maintaining compliance management systems in Spain, in search of the nature of these programmes and their role as deterrent factors for corporate criminality.

The author analyses the case of Spain in relation to Compliance Management Systems and Corporate Criminal Liability. It studies the way criminal justice understands and uses Compliance Management Systems to target corporate criminality. Moreover, it aims to deconstruct the way Compliance Management Systems are implemented in different corporations. To that end, Wortman Jofre conducted a series of semi-structured interviews with Compliance Officers and performed content analysis on judicial documents. While not being able to generalise or give definite conclusions, the results showed a misconnection between the aim of criminal law provisions and the profit-driven objectives of corporations. Furthermore, results unveiled the powerful motivation of requirements. Companies sought to implement Compliance Management Systems to access new markets, better supplies and insurance fee discounts. Rather than the threat of punishment the analysis indicated a stronger effect through the positive stimuli of requiring a Compliance Management System for a benefit. The study also showed a fear for the reputational consequences of being subjected to a criminal procedure, thus indicating a better predisposition to solve offences through alternative conflict resolution methods. The lack of a clear message from the criminal justice reduced the deterrent effect of punishment. This lack of clear standards may have fostered social disorganisation within the environment of corporations, thus constituting fertile ground for corporate crimes.

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