(Emphasis added - M.A.C .)
For this reason, it was determined that in order to convict a corporation of an offense, it must be determined that the elements of the offense existed in the organization, and there is no need for a formal prosecution or conviction of that organization.
For this reason, it was also determined that the protections against the criminality of the act, which will apply to a corporation, are defenses that relate to criminal liability. The Honorable Justice A. Barak noted this in the matter of informants (paragraph 11 of his judgment at p. 386):
"It has been ruled more than once [on the basis of the theory of organs] that the corporation is personally responsible for criminal matters. Similarly, the corporation may benefit from all the same protections and all those provisions whose operation is anchored in human characteristics."
Thus, for example, in the case of Nehoshtan, the corporation is exonerated of liability for one of a number of offenses for which the organ was convicted. This is in light of acts that were later in the offense committed by the corporation's CEO, which were recognized by the court as a remorse on the part of the corporation that justifies an acquittal of a trial conviction.
The reference is to defenses against the criminality of the acts (see, in this regard: Gavriel Halevi, Penal Law, at p. 933). Boaz Sanjaro, in his article: "Expansive Interpretation in Criminal Justice?!", Alei Mishpat 3, 165 (2003-4), noted an interesting distinction (albeit in a different context) that is relevant to our case. According to him (ibid., at p. 171), a distinction must be made between defenses of the justification type and defenses of the excuse type. According to him:
"Such a distinction can be based on the fact that while the exemptions are not part of the legislature's instructional message, the justifications are part of this message, alongside the criminal prohibitions. Thus, just as in defining an offense the legislature instructs the individual to refrain from certain behavior, in determining a justification, he guides the individual that in these special circumstances it is desirable that he perform the ostensibly prohibited act. On the other hand, exemption protections are not intended to direct behavior, but apply only retroactively and instruct the judge not to convict."