Managing directors and compliance officers (CO) who are actively
involved in criminal offences against third parties can be punished
as perpetrators or aiders and abettors. But what about if they just
"turn a blind eye" when employees or other managing
directors commit criminal offences? The Federal Court of Justice
[Bundesgerichtshof, BGH] has now clearly limited the criminal
liability in such cases (docket no.: VI ZR 341/10, F.A.Z. dated 1
August 2012). In doing so, it has contradicted the judgement of one
of its other senates, and has facilitated the daily work of
managers.
A person who enables or facilitates a criminal offence by not
stopping the offender can be punished for aiding and abetting by
omission. However, this only applies to persons obliged to
intervene on grounds of their special duty to care
["Garantenpflicht"]. In a high-profile judgement in 2009,
the Fifth Criminal Senate of the Federal Court of Justice
incidentally determined that a CO has a
