Viernes, 15 Junio 2018 13:23

A new model to prevent crime in businesses combines big data and socioeconomic theory 

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The University of Cordoba has designed the basis of a model to prevent criminal behavior at businesses if, in accordance with the possibility provided for in the Penal Code, they wish to not be held legally responsible for perpetrating certain crimes or illegal activity committed by their executives or employees.

When the National High Court indicted Neymar and Barcelona Football Club for signing the player or when the tampering of Volkswagen engines was discovered there was already a regulation in Spanish law that promoted compliance programs, a crime prevention model. So it was clearly set in the Penal Code reform under Organic Law 1/2015; if companies do not have an efficient complicance program, it is likely that they will be liable for certain crimes committed by one of their employees. The implementation and application in these models, called compliances, assumes that the business at least attempts to prevent its employees from committing crimes related to business activity, such as fraud, corruption, environmental crimes, tax evasion and so on, as happened in the Neymar case and seems to have happened in the Volkswagen case.

credit cardBut what exactly should this prevention model contain? As of now, the law lays out six requisites related to risks of business activity, the implementation of agreements, proper finance management, channels for reporting, the code of conduct and assessment of the model. But there is not a detailed model for companies to follow, meaning each company is free to write up the content, nor is there unanimous dogmatic support nor methodological tools that are solid enough to take on the company’s liability for perpetrating a crime. University of Cordoba researcher and  doctor of Law, Rafael Aguilera Gordillo, has carried out a rigorous study on this topic and configured the basis of a model to be followed, to reinforce the foundation of  corporate liability and also to provide effective tools to fight financial crime and organized crime.

This is a pioneer study in Penal Law and an advance in the way of responding to the legal requirements of the Penal Code, as it is a model that combines theory and methodological elements in order to prevent or more effectively deal with these kinds of crimes. Aguilera explains that his study consists of incorporating the socioeconomic theory of decision making and theories that analyze strategic conduct in the behavior of individuals within an organization, like game theory and the new institutionalism of rational choice, to analyze corporate criminal liability. 

Aguilera clarifies that the use of numeric variables via jurimetrics and the support of big data and artificial intelligence are all necessary to tackle the challenges presented by corporate crime. So, they should be used by businesses and companies to successfully fight the likelihood of crime perpertration. This researcher explains that the analytical extent and the certified scientific experimental validity of the theories used “are completely feasible within Penal Law, both from a theoretical standpoint and a pragmatic standpoint, since they take into account very significant factors and circumstances, such as influences within the company, arrays of possible actions by individuals, their position on the organogram, the costs and benefits of their possible actions, their preferences, personal aspirations, etc.” In Aguilera’s opinion, his study reinforces the creation of a compliance model that prevents crime “aiming to surpass the so-called suitability test currently required in order to relieve a company of penal liability.”

In addition, Aguilera’s study indicates methodologies that are especially useful to predict illegal conduct, which allows for coordinating more appropriate control mechanisms to prevent and deal with corporate crime.  

Doctoral thesis: Penal Compliance. The legal system and the analytical rationale of penal liability of corporate entities and the compliance program. Author: Rafael Aguilera Gordillo. Thesis Advisor: José Manuel Palma Herrera. May 2018

 

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