A regime based solely on personal responsibility is liable to fail to achieve deterrence for several reasons, the main of which is the difficulty in bringing about the conviction of the direct perpetrator of the offense....".
Their words indicate that with regard to deterrence, it is precisely the conviction of the corporation that will best advance this goal.
In addition, the question of incentives , to which counsel for the defendant referred, is a complex one, when it comes to organs that make decisions after the fact, when it comes to organs other than those that committed the offense (see Oded, Sharon, "Coughing up Executives or Rolling the Dice: Individual Accountability for Corporate Corruption," 35 Yale Law & Policy Review, 1 (2016): Available at:http://digitalcommons.law.yale.edu/ylpr/vol35/iss1/2). Regarding an analysis of the incentives for cooperation of suspects or defendants and their complexity, see: Doron Menashe and Limor Riza, "Some Defendants Volunteer Evidence, Evidentiary Incentives to Encourage Suspects, and Demand to Collaborate," Mishpat Studies 25 845 (5770-2009). This case itself is an example of the complexity of the incentives, since, in the hearing before me, counsel for the defendant clarified that the defendant had cooperated with the enforcement authorities all along. It is possible that if the new managers are involved, they will want to save the company' s name, precisely by "extradition" the criminal organization, in exchange for immunity for the company or a lenient sentence for it. Therefore, the question of what the company will do is not unequivocal, and it is not possible to derive legal policy from it.
A third reason why this immunity should not be attributed to a corporation relates to the fact that the organ concludes a state-witness agreement in his personal capacity, and not in his role as an organist. The state argued that the agreement of a state witness is to the detriment of the corporation and therefore the third test of the theory of organs is met, i.e., the actions of the organ should not be attributed to the corporation. I do not believe that there is room to examine the immunity agreement in the light of the theory of organs and its tests, the purpose of which is to attribute criminal liability to the corporation. However, this test comes to exclude acts committed by the organist in his personal capacity, as a private person, from the field of actions or behaviors attributed to the corporation. In this respect, the test is relevant. The state's witness agreement was made by the organs as private individuals, with the aim of avoiding criminal sanctions, which, if convicted, would likely result in actual imprisonment for the offense of bribery. The action is for their own sake, and against society, and therefore for this reason too, there is no reason to attribute immunity to society. The very fact that this agreement was entered into in order for the organ to testify against the corporation teaches that it was made by the witnesses as private individuals who are at risk of criminal proceedings, conviction and even the deprivation of their liberty, and not as organs. There is no dispute that at the time of drafting the agreements and granting the immunity, Aharonson, Weiss and Hirsch were no longer members of Siemens.