Företagaransvar - En kritisk analys av företagaransvarets förenlighet med legalitetsprincipen mot bakgrund av gällande rätt

Sammanfattning: According to Swedish law a juristic person can not be liable for a crime. When crimes have been committed within the organisation of a juristic person a natural person, usually the director or manager, may incur an individual criminal responsibility as a result of negligence to exercise supervision and control. Such criminal responsibility for a representative of the company (Sv. företagaransvar) is not stipulated by Swedish statutory law but governed by legal principles, which have developed through case law and legal doctrine. Penal law rests on the notion of individual moral agency. Legal scholars have critized the principles, governing the criminal responsibility for a company representative, for not being in compliance with the principle of legality (Sv. legalitetsprincipen). This paper seeks to explore critically the idea of responsibility for a company representative and to analyse whether the principle of legality imposes a requirement of codification in statutory law. The responsibility of a company representative seems in theory to be synonymous with the criminal liability a person in the position of guarantor has for omission. The principle of legality does not prevent criminal liability for omission, given that all conditions for criminal responsibility are fulfilled. To attribute a crime to a specific individual within a company has proven difficult and case law demonstrates how the application of the principles has meant deviation from required conditions for criminal responsibility.