A review of case law regarding the criminal liability of a corporation shows that in most cases in which corporations were prosecuted, it was determined that the perpetrator of the offense was an organization, even when the offense involved managers who were clearly organic, but even when the offense was committed by junior employees. Of the aforementioned cases in which the direct perpetrator of the offense was recognized as an organ, only in two cases was the corporation acquitted of responsibility for the offense committed by its organs, but not because the organs were not involved (Criminal Appeal 7399/95 Nehoshtan Elevator Industries in Tax Appeal v. State of Israel IsrSC 52(2) 105 (1998, hereinafter: the Nehoshtan case) and Criminal Appeal 24/77 Pan Lun v. State of Israel, IsrSC 33(1) 477; 493 (1979, hereinafter: the Pan Lun case). See also a discussion of the question of the status of the corporation's external accountant in criminal appeal 109/72 State of Israel v. Shoshana Paz, 28(1) 93, 99 (1973, hereinafter: the Paz case), and for an analysis of the judgment on this question: Yosef Gross, "The Organic Theory" and the Company's Accountant, Hapraklit 29, 179 (1974)/e); See also Gross, The Companies Law, 235).
The courts appear to have expanded the functional definition to bring about the prosecution of corporations. In addition, the definition of an organ in the functional test has been expanded for this purpose for employees who have broad powers in a particular field, even if not in general in the corporation. The Honorable Vice-President, Justice A. Rubinstein, noted this in the Melisron case, in his ruling (paragraph 115 of his judgment):
At the base of the theory of organs is, of course, the organ, that long, senior hand of society. In case law and literature, two alternative tests are used to examine the question of whether a certain person will be considered an organizer in an anonymous corporation. The first test, the organizational test – according to this test, the question of whether the individual is an organization will be examined in accordance with his formal status in the corporation; Thus, a general meeting of shareholders, a board of directors, a director, a general manager, and a business manager were recognized in the ruling as clear organs of the corporation.... The second test, the functional test, is whether the function performed by the specific officer justifies viewing his actions as the actions of the corporation, "whatever the hierarchical status of the worker in society"... The two tests, which are born of common sense, do not delimit the list of officials who can be considered organs in a closed list, and for good reason... The ruling clearly indicated that we are dealing with alternative tests."