Discussion Paper on the Nature of the Provision of Section 8(5) of the Act on Criminal Liability of Legal Entities: Contemplating the Possibility of Encumbering an Accused Legal Entity with the Burden of Proof
Abstract
The provision of Section 8 paragraph 5 of the Act No. 418/2011 Coll., on criminal liability of legal persons, invokes a number of both terminological and factual questions with the professional public. One of them is, whether the use of the term "exculpation" on the lawmaker's part was only an inaccurate representation of the imputability in negative way (the proper wording would then be "the legal person is not imputable"), or whether the lawmaker pursued the intent to implement some form of burden of proof.
The authors try to analyze the second option with respect to findings of both Czech and foreign criminal law science and the jurisprudence of the European Court of Human Rights, and the Czech Supreme Administrative Court, in order to contribute to the discussion on the nature of this provision.