Does a company or an organization have to assume subsidiarily the civil responsibility of an offense committed by an employee?
A very recent case is the ruling of the Supreme Court, on April 6 of this year. It condemns a company to compensate subsidiarily for damages to the victims of crimes of misappropriation, committed by some of its managers.
What does subsidiarity imply? In the aforementioned case, the people who actually committed the crime, the responsible managers, received their criminal and civil sentences. The amount they had to reimburse for the crime committed was established.
It also sentenced the company in which these employees worked, to assume that debt in the case in which they did not face their civil liability derived from the crime. Here lies the subsidiarity.
CONFIRMATION OF THE JUDGMENT
The company in question appealed to the Supreme Court, but the Supreme Court upheld the ruling based on Article 120.4 of the Criminal Code, which establishes that civilians will be responsible "... natural or legal persons dedicated to any kind of industry or commerce, for crimes that have committed their employees or dependents, representatives or managers in the performance of their obligations or services.
A company is, therefore, responsible for the crimes committed by its employees, and has the obligation to assume responsibility and reparations for the damages caused by them.
This subsidiary civil liability has its explanation in that the law understands that an employer can reduce the risk of harm created by employees.
THE PREVENTION OF RISKS
Hence, the most appropriate means to avoid these responsibilities is to prevent crimes within the company. Putting in place internal measures to reduce the risk of crimes, and therefore of damage, is a necessity for corporations and organizations, whatever their type. This prevention requires a system of rules and internal functioning that minimizes the risk of crimes and maximizes the possibility of early detection of criminal activities.
In general, situations in which one or more employees commit crimes in a company occur in contexts characterized by:
- Lack of adequate internal controls.
- Lack of staff training.
- Permanent rotation of positions.
- Messy and confusing documentation.
- Discontent, unmotivated staff.
- Low wages.
It is important that every organization self-evaluates in relation to exposure to their employees committing crimes. And also, to proceed with the restructuring to improve this aspect.
At present, the legal teams of the organizations elaborate plans of prevention of criminal risks. There are tools on the market that allow you to easily identify the risks associated with situations that may lead to crimes.
The organization and commitment of employees with the company is a fundamental part of prevention.
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