(Emphasis added - M.A.C .)
He added (paragraph 5 of his judgment at p. 381):
"The corporation is liable because there was a 'personal' activity and because there is a 'personal' mental element in the organization, and these are found to be sufficient to impose personal liability on the corporation...The corporation is responsible for the active action and the mental element that has been formed in the organization."
(emphasis added)
He further added (in paragraph 14 of the judgment, at p. 388):
"The corporation's personal criminal liability is crystallized due to the fulfillment of the provisions of the relevant criminal norm. For this purpose, it will be necessary, for the most part, to apply the theory of organs, according to which we will "attribute" to the corporation the thoughts and actions of the organs that serve in it.".
Gertenberg, in her article: Screws in the System, also clarifies this use of the term identity (ibid., at p. 654):
"This doctrine [the theory of organs inthe Penal Law] is intended to provide a solution to the limitations of vicarious liability in criminal law, by imposing direct criminal liability on the corporation, by imitating its imposition on human beings.Therefore, it is also known as the "alter ego" doctrine. It is the identification that makes it possible to impose liability on a corporation due to the fact that the offense was committed, and not to be satisfied with examining the existence of vicarious liability."
(Emphasis in original)
Therefore, despite the use of words such as identity and identification tests, we see that these are required for the purpose of examining who will be the organ whose actions will be attributed to the corporation, for what acts, etc., and this does not have an impact on the relationship between the organ and the corporation down the road, after the offense has been attributed to the corporation. There is no hint of the corporation's identity and identification with the organ afterwards, except that the organ is an organ, through which the company continues to operate. In other words, this is not an ongoing identification between the organ and the company, but rather the imposition of responsibility on the company by virtue of the organ's behavior and thoughts, which are examined at the time of the formation or commission of the offense.