6 Although, the commission by omission is not contained in the Venezuelan Criminal Code but in specific criminal laws, Venezuelan public prosecutors and criminal courts have accepted the commission by omission as a general source of criminal liability. In those cases, we find the following elements: (i) the description of the crime does not explicitly require an omission, on the contrary, in most cases the description seems to describe only a positive action, (ii) the harmful result contained in the description of the crime has occurred and (iii) the ‘guarantor' had the power to prevent such harmful result. When an individual is a guarantor of a source of danger (ie, a subordinated worker) or a legal interest (ie, corporate assets), such individual may be criminally liable in cases of commission by omission. Regarding companies in general, criminal scholars have sustained that members of the board are ‘guarantors' of the corporate assets. 3 However, it is important to stress that in some cases the decisions from a board of directors may be just preparatory acts of a crime that as a rule are not punishable under the Venezuelan criminal law because they do not imply the beginning of the execution of the planned crime. #Tsj gob ve full#2ĭecisions from the board of directors can constitute an accomplished crime to which the full penalty established in the criminal law must be applied, or can be just an attempt to perpetrate a crime or a failed crime to which a reduced penalty is applicable. Additionally, directors may be also criminally liable if they participate with malice of negligence in the execution of such decisions even if they (i) vote against those decisions or (ii) do not attend the meetings in which such decisions are approved. 1ĭirectors may be criminally liable if they vote with malice or negligence in favour of decisions of their boards that constitute a crime under any Venezuelan criminal law. As a rule, crimes require malice unless the law explicitly states that a specific crime only requires negligence. In Venezuelan criminal law, some crimes require perpetrators or accomplices to act with malice, and other crimes only require that they act with negligence. In this chapter we shall analyse the criminal liability of the members of the board of directors of Venezuelan companies (hereinafter ‘directors') under the Venezuelan Criminal Code and under certain special Venezuelan criminal laws. Criminal liability of members of boards of directors
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