In contemporary corporate environments, organizational structures play a decisive role in preventing unlawful conduct. Omissions arising from insufficient supervision, deficient internal controls, or ineffective compliance policies can create scenarios of criminal liability for both corporate officers and the legal entities they represent.
Modern criminal law theory recognizes that inactivity may be as legally significant as an affirmative act when the individual has a legal duty to act. Authors such as Asúa, Roxin, and Jakobs have emphasized that those who run a company assume a role as guarantors, bearing a legal obligation to prevent risks inherent to their sphere of authority. This organizational duty requires implementing appropriate structures, monitoring mechanisms, and internal controls to prevent the occurrence of typical results.
In Mexico, the regulatory framework expressly contemplates liability arising from relevant omissions:
- Article 11 of the Federal Criminal Code: establishes liability for representatives and corporate officers when the company commits a crime in its name, on its behalf, or for its benefit, and the individual had a legal duty to prevent the result.
- Article 25 of the General Law of Administrative Responsibilities: provides for the obligation to implement internal controls and integrity policies to prevent risks and ensure regulatory compliance.
- Article 421 of the National Code of Criminal Procedure: provides for the criminal liability of legal entities when the crime is committed through means, processes, or mechanisms that should have been supervised or controlled internally.
This regulatory framework shows a trend toward legal assessment of companies’ internal structures. Corporate criminal liability is no longer limited to active conduct directly attributable to its members but extends to organizational failures that allow foreseeable risks to materialize.
Consequently, the implementation of control systems, compliance protocols, supervision processes, and integrity mechanisms is not only an administrative best practice. It is a legal requirement, and failure to comply with it may result in criminal liability.
Marcos Fabian Castro Cano
Associate
