America’s view of corporate criminal liability is unique

The United States has a long legal history of holding corporations criminally responsible for acts of employees and agents. But that concept never existed under German or French law, among others.

Of the countries that do sanction corporations, most use only civil or administrative remedies.

Yet as Shruti Shah reported earlier this month, anti-corruption enforcement by the big economies is gaining speed.

Including actions against both companies and individuals, the United States is still the biggest enforcer by far, with 275 cases completed by the end of 2011. Germany comes in second with 176 cases, then Switzerland with 52 cases, Italy with 32, and the U.K. with 23.

That’s actually a remarkable record of enforcement in light of the traditional rejection by most countries of corporate responsibility for criminal acts.

Here’s what a 2008 article from the Yale Law Journal said:

Corporate criminal liability has become the subject of piqued criticism not only here but also in the international business community. From a comparative perspective, such liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose it comparatively infrequently and under the threat of far less serious punitive consequences. In countries like France and Germany, for example, the principle of societas delinquere non potest—“a legal entity cannot be blameworthy”—long prevented imposition of entity criminal liability at all. More recently, France and several other European nations have cautiously experimented with corporate criminal liability. Germany has held fast in refusing to punish criminally corporations for the acts of their individual directors or employees.

American politicians and business people are often disappointed that enforcement outside the U.S. still lags, and the level playing field promised by every president since Jimmy Carter isn’t here yet.

But with such divergent global views of corporate criminal responsibility, the real wonder is that enforcement outside the United States has already become so strong.