He adds, there, that the formal test should not be satisfied: "Because the law is not satisfied with the way things appear on the surface, but rather examines their essence."
Lederman, Organ Liability, believes that with regard to imposing criminal liability on a corporation, the focus should be on the criminal behavior and thinking of the corporation's senior officers:
"Indeed, by necessity, the expression "organisers and other senior officers in the corporation" is somewhat amorphous, and does not outline a precise and uniform framework for discussion. But his logic is clear. It is intended to embrace all the decisive figures and the top institutions of a legal body, which are responsible for shaping its policy and operating most of its activities internally and externally, without regard to the titles of positions or positions. The list of positions and positions is not uniform for all corporations, and in part it will change its face according to the structure of the organization, the nature of its activity, and the manner in which the powers and powers of the body that is the subject of the examination are distributed. Legal policy considerations will also often play a role in determining the framework, and naturally their weight will increase in border cases."
Kremnitzer and Ghanaim, Corporate Responsibility, are similarly of the opinion that the hierarchical or functional test should not be accepted as mere tests, and that a hierarchical-functional test should be adopted. In other words, a certain expansion of the group of senior office holders, while reducing their membership only to their actions as functionaries of the corporation. The corporation's organs are also branch managers and even department managers, but not junior employees, and this only when they have discretionary authority (ibid., at pp. 87-88). In the amendment memorandum, it is proposed to clarify this matter. On page 2 of the memorandum it is stated as follows:
"The amendment proposes to sharpen and clarify existing tests in case law regarding the identity of the organ whose criminal actions and thoughts will be considered the actions and thoughts of the corporation. Among other things, the proposal includes a clear and limited definition of the functional test, as well as the determination of a condition according to which the corporation's liability will not be imposed when the organ did not intend to benefit the corporation, and the act was not by its nature an act that benefits the corporation. The proposal also includes the addition of a supervisory obligation by the corporation to prevent the commission of certain offenses by an entity connected to the corporation. It therefore appears that the proposal includes various balances that on the one hand reduce criminal liability compared to the existing situation, and on the other hand expand it in a more appropriate and appropriate manner for imposing criminal liability on corporations in today's reality."