HRS § 702-228 - Liability of persons acting, or under a duty to act, in behalf of corporations or unincorporated associations

(1) A person is legally accountable for any conduct the person performs or causes to be performed in the name of a corporation or an unincorporated association or in its behalf to the same extent as if it were performed in the person's own name or behalf. (2) Whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or the unincorporated association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon the agent. (3) When a person is convicted of an offense by reason of the person's legal accountability for the conduct of a corporation or of an unincorporated association, the person is subject to the sentence authorized by law when a natural person is convicted of an offense of the grade and class involved. [L 1972, c 9, pt of §1; gen ch 1993] COMMENTARY ON Subsection (1) invokes the principle generally recognized in the law of agency that an agent does not escape personal liability merely because the agent's conduct is on behalf of a principal. The liability of a corporation or unincorporated association under §702-227 should have no bearing on the individual agent's personal liability. The defendant should not escape personal liability because the defendant's conduct was on behalf of the corporation or association which is held liable. Similarly, if the corporation or association is not held liable for the agent's conduct (because, for example, the agent is not of high managerial status and the offense is a felony which is not so defined as to indicate a legislative purpose to impose such criminal liability on corporations or associations) the agent should not, because of this, escape personal liability. Subsection (2) permits the imposition of penal liability upon a corporate or associational agent who, having primary responsibility for the discharge of a duty imposed by law upon the corporation or association, fails to perform the required act. It is intended to avoid the ambiguity which might arise because, without this provision, it might be argued that the absence of a specific duty of performance upon the agent makes the agent's omission an insufficient basis for personal liability. Subsection (3) is intended to avoid the problem of equating the sentence available for a corporate or associational defendant (fine, revocation of charter or license, etc.) with that which may be imposed on an individual defendant (imprisonment) accountable for the conduct of a corporation or unincorporated association.[1] Case Notes Personal liability of corporate officers. 62 H. 222, 615 P.2d 730 (1980). __________ Commentary: 1. See People v. Duncan, 363 Ill. 495, 2 N.E. 2d 705 (1936), where the court held that imprisonment for the individual defendant was improper because it could not be imposed on the corporate principal and, furthermore, imprisonment would be equally improper, for the same reason, to compel payment of a fine.