LEXONOMICA 
Vol. 16, No. 1, pp. 45–66, June 2024  
 
https://doi.org/10.18690/lexonomica.16.1.45-66.2024 
CC-BY, text © Vukušić, 2024 
This work is licensed under the Creative Commons Attribution 4.0 International License. 
This license allows reusers to distribute, remix, adapt, and build upon the material in any medium or 
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 NATURAL PERSON AND LEGAL ENTITY  
AS A GUARANTOR IN THE CROATIAN 
CRIMINAL LAW 
  
Accepted  
13. 2. 2024 
 
Revised 
25. 4. 2024 
 
Published 
27. 6. 2024 
IVAN VUKUŠIĆ 
University of Split, Faculty of Law, Split, Croatia 
ivan.vukusic@pravst.hr 
 
CORRESPONDING AUTHOR 
ivan.vukusic@pravst.hr 
 
Keywords 
omission,  
guarantor,  
natural person,  
legal entity,  
culpability 
Abstract The paper analyzes the specificity of unreal criminal 
offenses of omission, which is manifested in the fact that those 
criminal offenses are committed by the guarantor. Given the 
specificity and rarity of punishable conduct of omission, the 
paper analyzes the legal position of the guarantor (as a natural 
person or legal entity) whose duty is to protect certain, but not 
all, legal goods. In addition to the fact that responsibility for 
omission is exceptional, the statuses that individuals have in 
society are explained through the prism of the grounds of the 
guarantor duty in Croatian but also from the aspect of different 
legal systems. The concept of the legal bases of the guarantor's 
responsibility, which represent the sources of unlawfulness and 
culpability in the guarantor's duty, is elaborated in detail, with 
a special emphasis on the guarantor's actions in mistake. 
 
46 LEXONOMICA.   
 
1 Introduction 
 
An omission is punished because of the expected preventive behaviour of the person 
(Leavens, 1988: 582). According to the Draft Criminal Code of the Federal Republic 
of Germany from 1962, a guarantor is a person who has a duty, so this fact alone 
prescribes a special legal position for him and he is entrusted with the protection of 
certain legal goods. Unreal criminal offenses of omission are criminal acts related to 
the breach of duty to prevent the occurrence of consequences (Mrčela and Vuletić, 
2021: 96-97). In the case of these criminal offenses of omission, the consequence is 
part of the definition of criminal offense (being of the criminal offense) (Radman, 
2012: 67), which may refer to injury or concrete endangerment. In this case, not 
everyone is liable, but only the person who is legally obliged to avert the 
consequences. Such a person is a guarantor because he guarantees that the 
consequences will not occur, so these criminal offenses are committed by a person 
with special characteristics (delicta propria) (Radman, 2012: 67). However, in rare 
cases, the guarantor's responsibility is also established in real criminal offenses of 
omission, but only if the legislator expressly stipulates that the criminal offense can 
only be committed by the guarantor (as in the case of Failure to Provide Medical 
Aid in Emergencies, Art. 183 of the Criminal Code in Croatia (hereinafter: CCC), or 
the Responsibility of Commanders from Art. 96 of the CCC) (Mrčela and Vuletić, 
2021:  98). The guarantor is usually a natural person, but the guarantor's 
responsibility can be shared with a legal entity because Croatian criminal law also 
regulates the responsibility of legal entities for criminal offenses, which can also be 
committed by omission (Mrčela and Vuletić, 2021: 98). 
 
For the liability of the guarantor, it is necessary to prove all the assumptions under 
which the guarantor is liable in criminal law: the ability of the guarantor to act, 
omission to act is by its effects and meaning tantamount to committing the said act 
by acting („equal value“ clause), the failure to act must be a causal factor in the 
occurrence of the consequence and there must exist the form of culpability that is 
required for committing the criminal offense in question (Josipović et al., 2001: 111). 
This means that the guarantor has a special relationship with the protected legal 
good, from which a relationship with the special obligation to that legal good also 
arises. The above is valid in national law, but also in international law, while in 
international law it is most often a question of a situation when a person, due to his 
position and duty of supervision, is obligated and responsible for his subordinates 
(Mrčela and Vuletić, 2021: 100). 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 47. 
 
 
In principle, there is no general obligation to avert criminal offenses of third parties, 
but this obligation exists in the case of guarantor obligations. The fact that there are 
also responsible perpetrators (who were not criminally prosecuted probably because 
they could no longer be identified) is irrelevant. 
 
The guarantor duty is considered through Art. 20 of the CCC. Where an unreal 
criminal offense of omission is described in a Special Part of the CCC, the „equal 
value“ clause is quite clearly described in that same Special Part of the CCC (Roxin, 
2003: 636). Guarantor obligations are not prescribed in the CCC, but their 
determination is the task of legal science and judicial practice (Novoselec, 2003: 966). 
The guarantor is legally obliged to act, which means that the guarantor's duty must 
be prescribed by law, not necessarily by the Act, because in criminal law customs are 
also the source of law. In the case of a criminal offense of omission, the court's duty 
is to explain the perpetrator's "ability to act", the "equal value" clause, the 
perpetrator's "awareness", i.e. "intent" or "negligence", as well as all other 
circumstances important for judging, and they refer to taking into account all other 
circumstances that are specific to the liability of legal entities for criminal offenses. 
 
Following the above, the paper aims to establish guidelines for the interpretation of 
the term when the guarantor is "legally obliged to avert the occurrence of the 
consequence" and when his criminal liability can be excluded. Namely, the identical 
statement "legally obliged to avert the occurrence of consequences" is found in 
Croatian law, and Anglo-Saxon law (for example, the Model Penal Code which 
affects the laws of national legislation in the USA (Section 2.01.par.3 a) prescribes 
"a duty to perform the imitted act is otherwise imposed by law"). Federal Criminal 
Code of Germany recognizes the same concept (par. 13 of the StGB prescribes "..., 
wen er rechtlich dafur einzustehen hat, dass der Erfolg nicht eintritt, ..."). 
Considering that this term has been part of the mentioned criminal legislation for a 
long time, it was necessary to see if there is a problem that the current criminal 
legislation of the Republic of Croatia did not encompass, or if there is a need to 
amend the mentioned provision in the CCC. Following the aim set in this paper, 
first general indications of the guarantor's legal position at omission are given, and 
then concrete cases of guarantor liability are analyzed. 
  
48 LEXONOMICA.   
 
2 Guarantor 
 
It is reasonable to ask the question why, in the case of unreal criminal offenses of 
omission, only those who have the duty to act are punished for omission, because 
the consequence is the same for both acting and omission, as well as the intention 
and the cost of averting the consequence. Would it not be sufficient for the existence 
of liability for omission if the person had the possibility to avert the occurrence of 
the consequence, but did not avert it? (Rosenberg, 2013: 16) The guarantor is 
considered to be a person who has power and control over certain situations (germ. 
Kontrollherrschaft) and only he must have duty to act. So he is obliged to act even in 
case of involuntary situations and conditions, under the condition that these 
situations are under the guarantor's control. (Mrčela and Vuletić, 2021: 98) When 
analyzing unreal criminal offenses of omission, difficulties can only arise in the 
question where, according to criminal law, there is a duty to take action. 
 
Society has expectations of a guarantor and that is why the law requires him to take 
action in a certain situation. This cannot be the case with moral obligations. This 
only means that it is necessary to analyze other laws in the Republic of Croatia to 
conclude whether someone is obliged to avert the occurrence of the consequence. 
There is a problem with a bystander, an eyewitness, on the road, who does not help 
the victim in a traffic accident. Namely, in Croatian criminal law theory, a casual 
pedestrian, an eyewitness, is not a guarantor, however, the question arises whether a 
casual pedestrian, an eyewitness who could have averted consequence without 
greater danger to himself should still be held liable for an unreal criminal offense of 
omission? Namely, the Law on Road Safety (Zakon o sigurnosti prometa na cestama, 
Official Gazette No. 67/08, 48/10, 74/11, 80/13, 158/13, 92/14, 64/15, 108/17, 
70/19, 42/20, 85/22,114/22,133/23 (hereinafter: ZSPC)) which regulates 
misdemeanors, prescribes that every traffic participant (pedestrian, driver) is obliged 
to assist another, and the question arises whether this provision in the ZSPC is the 
source of a guarantor duty for an accidental pedestrian who is also an eyewitness to 
a traffic accident? (Leavens, 1988: 569) Is a legal norm from the sphere of 
misdemeanor law, if it is understood as a source of guarantor duty, protected by the 
provisions of the CCC? If custom is also considered to be the source of unlawfulness 
in the criminal law of the Republic of Croatia (Kurtović Mišić and Krstulović 
Dragičević, 2014: 115), why shouldn't the sources of the guarantor duty be in the 
Acts of the Republic of Croatia that regulate misdemeanors, not only criminal 
offenses? Here should be established that such violations can be a source of 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 49. 
 
 
unlawfulness, but they cannot be a source of a guarantor duty (Mrčela and Vuletić, 
2021: 98). Namely, the real criminal offense of failure to act, the criminal offense of 
Failure to Render Aid in Art. 123, par. 1 of the CCC describes the above situation 
and therefore excludes the possibility of punishment for the unreal criminal offense 
of omission when the CCC has already provided provision for responsibility in the 
form of the real criminal offense of omission for this situation. 
 
The situation is similar in the case of the Rulebook of the Court of Honor of the 
Croatian Mountaineering Association, which in Art. 3 stipulates that it refers to 
members participating in the programs and actions of the Association. But what 
about non-members? It is one situation when two mountaineers agree on a joint 
venture for the conquest of a mountain, and it is another thing if a random passer-
by in the forest encounters a stranger who has had a heart attack and is not on the 
hiking trail, and there is no guarantor relationship between them. Such a person 
cannot be punished for causing death by negligence, but he can be punished for 
Failure to Render Aid as a real criminal offense of omission. If the person was 
obliged to call for help, and he was, because there is a criminal offense of Failure to 
Render Aid that prescribes the duty to assist, the question arises whether such a real 
criminal offense of omission, which prescribes the duty to assist, can be considered 
as a source of a guarantor duty in criminal law? However, Roxin states that it is 
important to recognize that a guarantor obligation that includes duties to avert a 
consequence can never be derived from a real criminal offense of omission. 
Therefore, it should never be considered that the real criminal offense of omission 
or Failure to Render Aid establishes a guarantor obligation. On the other hand, if 
the legislator prescribed the criminal offense of Failure to Render Aid, perhaps it is 
precisely to include the responsibility of persons who are not guarantors, and who 
do not undertake the act of assisting, because Failure to Render Aid is a real criminal 
offense of omission that can be committed by anyone. Namely, the content of the 
act of assisting is not the same as the content of the duty to avert a consequence. 
 
In some cases, there can be conduct of acting that is not causal with the 
consequence. In the Federal Republic of Germany, in a case where the mother left 
a three-year-old child alone in the house, and she turned on the gas and set fire to 
the kitchen, the LG established the cause of death by negligence by conduct of acting 
because the apartment was left at the disposal of the three-year-old child. BGH, on 
the other hand, considers that, although leaving the apartment is a conduct of acting 
that is not harmful in itself, it is harmful that the stove is not secured or that 
50 LEXONOMICA.   
 
supervision over the apartment is not ensured in some other way while the child is 
in it (Roxin, 2003: 657). In this case, the mother is the guarantor and the BGH 
determined that the mentioned measures would avert the consequence, taking into 
account the probability bordering with certainty. Namely, leaving the apartment is 
not causally connected with the resulting consequence. Causation with the 
consequence is failure to take security measures before leaving the apartment, and, 
in the case of a legal entity, failure to ensure the supervision of a business facility. 
 
3 Legal entity 
 
The constant development of technology causes different situations in social life that 
require legal regulation. Behind all major projects and initiatives that try to solve a 
problem or situation in society is a legal entity. Although at the EU level, there has 
always been a warning about the adaptation of legal systems and legislation to the 
reached level of technological development of society (Summers, 2015: 60), it is 
necessary to see how the liability of a legal entity exists from the legal position of the 
guarantor. 
 
In continental Europe can be found a rigid understanding of the concept of liability, 
different from the Anglo-American concept of mens rea (Vuletić, 2023: 1). When 
prescribing criminal liability for legal entities, Croatia followed the trend of post-
transition countries (Vuletić, 2023: 2). It encompassed the role model of the French 
Criminal Code, the German Law on Misdemeanors, and the Slovenian Act on the 
Liability of Legal Entities for Criminal Offenses (Vuletić, 2023: 2). The liability of 
legal entities for criminal offenses has been established due to the increase in 
economic criminality, where the legal entity comes to the fore as the beneficiary of 
illegally obtained property benefits. The interest in punishing a legal entity with the 
sanctions of criminal law is also reflected in the fact that the legal person has a 
„criminal spirit“ because there is a corporate culture that serves the interests of the 
legal entity (Novoselec, 2016: 473). This is also the fundamental reason why both 
natural persons and legal entities should be punished with the sanctions of criminal 
law to develop awareness in society, that the commission of criminal offenses for 
the benefit of a legal entity truly leads to the detriment of the legal entity. All 
mentioned is supported by the Council of Europe, which Recommendation no. R 
(88)18 from 1988 indicated the need to punish legal persons with criminal law 
sanctions. Corpus Iuris in Art. 13. prescribed the necessity of punishing legal entities 
for criminal offenses if they commit criminal offenses to the detriment of the EU 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 51. 
 
 
budget, as prescribed by the Second Protocol to the PIF Convention from 1997. 
The aforementioned regulation can also be found in the French Criminal Code from 
1992 in Art. 121-2 as well as in paragraph 30 of the German Code of Misdemeanors 
where a legal entity borrows its criminality from a natural person. 
 
When analyzing models of criminal liability of legal entities, the most common 
theories refer to the objective model, the liability of the legal entity based on the 
liability of the responsible person, and the autonomous liability model. Most 
problems from the aspect of criminal law and the principle of culpability can be 
found in the objective model (vicarious liability) where it is only necessary to 
establish the harm caused which is beyond the boundary of acceptable risk (Vuletić, 
2023: 2). With the type of objective liability of a legal entity, the existence of 
culpability is not required for regulatory offenses. Liability of the legal entity based 
on the liability of the responsible person follows the principle of culpability because 
the culpability of the responsible person is the ground for criminal liability of the 
legal entity. This is a typical roll model of the European continental system. With the 
theory of identification, actions of the guarantor undertaken in favor of a legal entity 
are considered actions of legal entities. According to Art. 3. of the Act on the 
Liability of Legal Entities for Criminal Offenses in Croatia (Zakon o odgovornosti 
pravnih osoba za kaznena djela, Official Gazette no. 151/03,110/07, 45/11, 143/12, 
114/22, 114/23, hereinafter: ZOPOKD), a responsible person must commit a 
criminal offense and not a misdemeanor (Vuletić, 2023: 3). If the responsible person 
acted with mental incapacity or in the mistake of fact or law, then, the liability of the 
legal person is excluded according to the principle of culpability. The responsible 
person can be anyone who is in charge of managing or dealing with duties within 
the competence of the legal entity, and it cannot be limited only to management 
structures. So the lack of obeying the duty to protect, and the causal link between 
the lack of protection and the consequence must be established to find the guarantor 
liable in the case of legal entities. For a legal entity to be responsible, financial 
benefits acquired by the criminal offense of omission must be in favor of legal 
persons, because in the opposite case, there can be no criminal liability of the legal 
entity (Novoselec, 2016: 474). In the case when a legal entity is a perpetrator of a 
criminal offense, there is a possibility of imposing monetary fines or the termination 
of the legal entity, which is an exception in the Croatian jurisprudence (Derenčinović 
and Novosel, 2012: 605). 
 
52 LEXONOMICA.   
 
This means that in case of omission, the legal entity will be liable only for the actions 
of persons who have the power to decide, that is, the power to avert consequences. 
However, the legal entity will not be punished if the guarantor has not committed a 
criminal offense, i.e. if one of the elements: conduct, being of a criminal offense, 
unlawfulness, or culpability does not exist. Likewise, the question arises of how to 
act in a situation if the guarantor cannot be tried for some reason. Croatian law has 
regulated that even in the event of legal (immunity, amnesty) or real (death, 
impossibility of identification) obstacles to determining the liability of the 
responsible person, the legal entity can be punished (Art. 5. par. 2 of the ZOPOKD). 
 
3.1 Legal entity and AI 
 
The liability of a legal entity and a natural person within a legal entity is especially 
relevant in situations of the use of AI. Although there are different degrees of 
independence of AI when taking action, as a result of the above, different situations 
of liability are also possible, for example, of legal entity, natural persons in legal 
entity, or users (Mrčela and Vuletić, 2018: 470). Special problems with AI and the 
liability of legal entities are visible through the use of "smart robots" that have a 
degree of autonomy when functioning according to AI. (Vuletić and Petrašević, 
2020: 226). A further problem is when robots are working with or instead of people, 
and maybe sometimes when it is not useful for society (Vuletić and Petrašević, 2020: 
227). As has already been said, some legal systems don't recognize the criminal 
responsibility of legal entities, but analyze it through the rules of civil law. That is a 
good thing for the current regulation of AI in the EU, even though the current civil 
law framework on regulation of AI in the EU isn't sufficient without criminal law 
regulation (Vuletić and Petrašević, 2020: 229). That means that in states that 
recognize the criminal liability of legal entities, there is the possibility of an adhesion 
procedure where the same proceedings will finish with a verdict on civil and criminal 
liability. When talking about the liability of legal entities as guarantor's, legal entity 
liability for damage caused by AI is analyzed, as well as the relationship of the legal 
entity (mostly the manufacturer) with the developer. In Germany, when determining 
liability for the actions of AI, it is always necessary to see who is behind the AI, that 
is, which natural person. This is mostly about negligent liability, where the 
foreseeability of the consequence and the causal connection between the omission 
and the resulting consequence are analyzed, that is, i.e. if timely and legal action 
would have averted the consequence, which is also characteristic of the guarantor 
duty. Even though the characteristic of AI is that it makes conclusions 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 53. 
 
 
independently, AI cannot be a defendant in criminal proceedings. Given that the 
German legal system does not recognize the criminal liability of legal entities for 
criminal offenses, civil liability would be determined, the criticism of which has 
already been discussed (Mrčela and Vuletić, 2018: 477). 
 
In the law of the Republic of Croatia, the responsibility of the guarantor at AI would 
be analyzed based on the grounds of danger that is in the power of the perpetrator. 
According to the law of the Republic of Croatia, it is necessary to see who is legally 
obliged to avert the consequences (Art. 20. par. 2 of the CCC). In the law of the 
Republic of Croatia, a single criminal procedure is conducted against a legal entity 
and a responsible person in a legal person. According to the ZOPOKD, for criminal 
liability of a legal entity, it is necessary to prove that the responsible person has 
violated some duty of the legal entity or that the legal entity has obtained an illegal 
financial benefit for itself or another. (Art. 3. par. 1 of the ZOPOKD). 
 
Analyzing an example of a criminal offense from the Special Part of the CCC, the 
responsibility of the legal entity for AI will most often be about Endangering Life 
and Property by Dangerous Public Acts or Means, namely par. 2. which describes 
omission, that is, failure to act according to regulations or technical rules on 
protective measures (Mrčela and Vuletić, 2018: 480). If a natural person uses a legal 
entity to commit a criminal offense to benefit himself, the natural person will be 
responsible as an indirect perpetrator because he uses an organized apparatus, and 
the legal entity will be responsible for Endangering Life and Property by Dangerous 
Public Acts or Means. 
 
4 Grounds of the guarantor duty 
 
The law does not establish a general duty to act that consists in averting the 
consequences, but there is still a general duty to help others. However, the emphasis 
is on legal duties rather than moral liability (Dunbar, 2012: 3). For the guarantor to 
be criminally liable, his action must be unlawful. Unlawfullnes at unreal criminal 
offenses of omission manifests itself in the violation of the legal obligation to avert 
consequences. In this way, the judicial practice in the Republic of Croatia defined 
unreal criminal offenses of omission (VSRH I Kž 456/2006, Mrčela and Vuletić, 
2021: 97). Unlawfullnes is manifested through omission, which is fulfilled through 
the being of a criminal offense. 
 
54 LEXONOMICA.   
 
Some authors, when analyzing the grounds of the guarantor duty, have tried to limit 
to civil obligations to preserve life, but then the question arises as to which 
obligations protect life exclusively (Leavens, 1988: 556). There is a point of view 
according to which the violation of the duty to act should be considered sufficient 
for the existence of a guarantor duty, and this violation will exist if the provisions of 
civil law are violated in such a way that the violation of the civil law norm is so 
"abnormal" that the existence of causation is indisputable. However, this point of 
view is not justified because there are many acts of violation of the provisions of 
civil law, which do not automatically lead to criminal liability (Mead, 1991: 157). 
Namely, civil law also recognizes intent, but if a person intentionally and knowingly 
violates a contract, then civil law sanctions are applied to him, not criminal law. 
Therefore, it can be concluded that the determination of the guarantor duty should 
be connected with the principle of fragmentation and subsidiarity of criminal law, 
and not exclusively with the creation of risk through the prism of the principle of 
ultima ratio societatis. This is another proof of why it is necessary to prescribe the 
criminal liability of legal entities for criminal offenses in national legislation. 
 
In continental law, which also includes the Republic of Croatia and the Federal 
Republic of Germany, there is a division between the duty to supervise the grounds 
of danger and the duty to protect legal goods in the case of guarantor duties (Ambos, 
2020: 28-30). The ruling opinion in the Federal Republic of Germany starts from a 
pragmatic point of view according to which judicial practice and theory must 
determine when there is a guarantor duty (BverfG NJW 2003,1030; LG Kiel NStZ 
2004,157,158), which is interpreted in the same way in the Republic of Croatia 
(Novoselec, 1994: 966). When it comes to the duty of supervision, it is a situation in 
which legal interests are threatened. This is a situation of supervision over the 
grounds of danger that are under the authority of the guarantor, responsibility for 
the unlawful behavior of third parties (parent-child relationship, employer-
employee, management of a legal entity-director), and previous unlawful behavior. 
When it comes to the duty to protect legal goods, then one or more dangers threaten 
the legal interest. It is a situation of family ties, close relationships in situations of 
emergency or danger, voluntary assumption of obligation, and duties based on an 
official or responsible person status (legal entity). 
 
Jurisprudence groups guarantor obligations according to the criterion of the ground 
of the guarantor obligation: law, contract, jurisdiction based on a previously 
dangerous action, life relationships, that is, a living life community (Schmidt, 2008: 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 55. 
 
 
289; Kurtović Mišić and Krstulović Dragičević, 2014: 103). The theory analyzes the 
duty to protect certain legal goods from danger (germ. Beschützergarantien, 
Obhutspflichten) or to supervise the sources of danger concerning third parties (germ. 
Überwachungsgarantien, Sicherungspflichten) (Horvatić, Derenčinović and Cvitanović, 
2017: 15 - 17; Novoselec, 2016: 128 - 130; Mrčela and Vuletić, 2021: 99). Certain 
circumstances that establish the duty of the guarantor are described in being of 
unreal criminal offense of omission (BGHSt 16, 155, 158). Newer sources start from 
the material criterion, and thus analyze special duties to protect a certain legal good 
(special close natural connection, dangerous undertaking actions, voluntary 
assumption of duty of protection, official position or position within a legal entity) 
(Wessels and Beulke, 2000: 239). Other criteria are the duties of supervision over 
certain sources of danger ( the duty of supervision over third parties which does not 
imply the duty of spouses to prevent the criminal offense of their spouses, but there 
is the duty of parents to prevent the criminal offense of their minor child if such a 
possibility exists, supervisory board supervision over management and the director) 
(Wessels and Beulke, 2000: 242), unlawful dangerous behavior (if the person by his 
action caused imminent danger to the legal goods of a third party). If there is an 
acting according to the law, then no guarantor duty is created, but only the obligation 
to assist (BGHSt 23, 327). If someone undertakes an unlawful attack and then 
defends himself and thus finds himself in danger through his culpability, the one 
who defends himself cannot be expected to be a guarantor for the attacker. That 
would be against the rules on necessary self-defense. The duty to take precautionary 
measures must also be analyzed (in the case of a legal entity producer who must 
recall a product from the shelves if it is harmful to the health of the consumer, with 
the fact that the previous action of the producer does not have to be unlawful, 
because the omission was made by the supplier of the raw material (similar to 
Ledersprayfall, BGHSt 37,106 ). Sometimes it's necessary to analyze the places in 
the market (such as the responsibility of Internet service providers for unwanted 
content on the Internet, which has control over the content on the Internet that as 
such can cause harm). It is important to notice that the guarantor obligation cannot 
arise from the provision of a real criminal offense of omission. 
 
In Anglo-Saxon law, the first ground of guarantor duty is if the persons are in a joint 
household, the second is if they are related by blood (Rex v. John (1825), 20-2 where 
liability for neglect of a child through failure to provide sufficient food or clothing 
was established), by marriage or adoption (formal or informal), the third is if a person 
is unable to take care of himself due to youth, illness, old age, senility or other mental 
56 LEXONOMICA.   
 
deficiency, and the fourth refers to a person who started assisting, but has in the 
meantime unreasonably given up (McCutcheon, 1993: 69). In US law, there are 
formal sources of guarantor duty in the case, where it is based on legal regulations, 
contracts, and special relationships, which is characteristic of the liability of a legal 
person and voluntary assumption of care (Jones v. US, 308 F2d 307 (1962)). 
However, in a later case in Anglo-Saxon law, the emphasis is placed on foreseeing 
the danger of the one who contributes to the creation of the danger, thus trying to 
move away from the formal grounds of guarantor duties (R v. Evans (2009) EWCA 
Crim. 650.; Ambos, 2020: 34). In contrast to the law of the Federal Republic of 
Germany, where guarantor duties are crystallized through theory, UK law places a 
strong emphasis on the formal grounds of the guarantor duty (Ambos, 2020: 35). 
But despite the formalism, the duty of guarantor in continental and Anglo-Saxon 
law is attributed to a person who is not a guarantor, because if, for example, a person 
who is not a guarantor has started to help a person in need, then he must continue 
to help. After all, abandoning the previous effort would leave the victim in a more 
difficult situation than before assisting. The above statement is also valid if the aid 
provider has created a new or additional risk (not necessarily hypothetical) that will 
be materialized if it stops providing aid (goal-oriented assistance). The situation is 
different if the dangerous situation and the prevention of the dangerous situation 
can be divided into stages so that leaving the dangerous situation does not worsen 
the victim's condition (continuing/incremental assistance) (Ambos, 2020: 36-37). 
 
5 Examples of the guarantor duty 
 
Given that the paper analyzes several legal grounds on which the guarantor duty is 
based, it is necessary to give examples of some guarantor duties, taking into account 
the scope of the paper. 
 
5.1 Voluntary promise of obligations 
 
Trust and/or confidence in a person is a situation when someone must act following 
a previously given promise. Likewise, it is necessary to consider the conditions under 
which the promise was given, because the deviation of life circumstances from the 
mentioned promise and conditions cannot lead to liability for omission (Mead, 1991: 
152). It is also necessary to analyze the severity of the breach of the promise because 
it needs to have effects on the trust in a person. It is not the same whether a person 
canceled the obligation at the moment when she was obliged to fulfill it or a few 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 57. 
 
 
days before when perhaps the future circumstances were known or foreseeable. It is 
necessary to understand that a promise is not sufficient to establish a duty to act 
unless it is accompanied by reliance and conferral of a benefit. If only one of these 
two conditions exists with a promise, then it is not sufficient by itself to establish a 
duty to act (Mead, 1991: 155). Likewise, it is a fact that making a promise aims to 
promote trust in a person. Only these two elements fulfilled cumulatively aim to 
fulfill the legal phrase "legally obliged to avert the occurrence of consequences". The 
absence of reliance means that the person does not cause danger to the victim. Then 
without reliance, the promise has no effect. The fact is that the promise does not 
cause or absolve others from undertaking the act of rescue. Making a promise is not 
an exceptional gesture, it is given often and does not cause evil. A promise is morally 
binding, but not legally binding (Mead, 1991: 155). Therefore, promises are not legal 
obligations, unless the specified criteria are met. If a legal entity promised to provide 
aid to the poor and changed its mind, the question is whether its liability can be 
established. However, if a third party also wanted to provide aid to the poor, but 
gave up because the legal entity had already offered, the question arises as to whether 
it could still be a case of liability for acting. Thus, Raz believes that moral obligations 
should not have their place in the law unless it is a violation of the duty to act, that 
is, if the moral obligation becomes the legal obligation (Mead, 1991: 157 ). The duty 
based on the voluntary promise of obligations also includes the situation if someone 
has started rescuing another, because then he should continue with the rescue action. 
Thus, a legal entity as the owner of business premises has the duty to protect its 
visitors. This does not mean that the owner is obliged to protect any visitor (for 
example, unauthorized entry) or drug user (for example, a tenant) (BGHSt 30, 391). 
But if the legal entity did not secure its premises with a padlock or some other means 
so that the premises could not be misused, then the legal entity is liable. A legal entity 
must put out a fire on its property to prevent its spread, even when it did not cause 
it, which also belongs to the category of sources of danger that are in the power of 
the perpetrator. 
 
Analyzing owner's duty and the duty to supervise others, it is necessary to conclude 
that it is a civil liability raised to the level of criminal liability, where the owner is 
obliged to ensure that his property does not cause harm to others (permanent danger 
in case of necessity). There is also an example of an owner who supervises others 
who are present on his property (for example, what happens in the car of a legal 
entity if it allows the driver to drive dangerously while the vehicle is also under the 
supervision of the legal entity) (Mrčela and Vuletić, 2018: 482). Here it is important 
58 LEXONOMICA.   
 
to emphasize that, according to the theory of objective imputation, autonomous 
actions of third parties cannot constitute criminal liability, that is, there is no 
guarantor duty, as in the example of the case where the owner rents an apartment or 
a car and then has no control over them (Ambos, 2020: 38). 
 
5.2 Contract 
 
The contract certainly implies a legal duty to act, however, the question arises 
whether the legal duty to act prescribed by civil law is sufficient to establish liability 
in the criminal law (Mead, 1991: 157). A guarantor duty exists if there is a contractual 
obligation with the victim, a third person, the state itself, or the local community. 
An express contract for providing of services creates an obligation to provide the 
services appropriately. Such a contract need not only be express but may also be 
tacit, for example, if in the case of a person who is dependent on another. In the 
case of Davies v. Commonwealth, 335 S.E.2d 375 (1985) the liability of an adult 
daughter was established for the care of her mother who was receiving social 
assistance and whose social assistance covered the living expenses of both mother 
and daughter. However, here it is clear that it is not necessary to look only at formal 
contracts, but also a private agreement can be considered. In the case of a legal entity, 
there will usually be a written document, statement, or contract, so it will be easier 
to prove the guarantor's duty.  
 
The CCC punishes an agreement to commit serious criminal offenses (conspiracy), 
which emphasizes the exceptional nature of punishing private agreements, so the 
question arises as to whether it is justified to punish the non-fulfillment of any 
private agreement and analyze it through the guarantor duty. Here it is necessary to 
draw a comparison with the importance of the agreement through the prism of the 
conspiracy in the CCC and the severity of the criminal offenses for which the 
agreement is made. When analyzing the principle of the unity of the legal order, the 
violation of a private agreement that leads to the commission of more serious 
criminal offenses should be punished, i.e. criminal offenses for which punishment 
can be imposed, by interpreting Art. 327 of the CCC, a prison sentence of three 
years. Therefore, the occurrence of consequences in case of violation of the 
agreement should not be punished if the CCC prescribes a penalty of less than three 
years. 
 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 59. 
 
 
In Anglo-Saxon law, the doctor-patient relationship is considered through a 
contract, but in continental law, including in the law of the Republic of Croatia, it 
can be seen through the law as a ground of a guarantor duty. However, it is necessary 
to see the legal regulations and contracts of the legal entity where the doctors are 
employed, especially private clinics, and whether there is any limitation on the 
doctor's authority when providing service for patients in each legal entity. 
 
5.3 Duty arising from the creation of risk 
 
If a person covertly puts another in danger, then the person has a duty to save the 
victim. The duty of the one who creates danger, for example, a robber who takes a 
drug addict's wallet and leaves him motionless on the road despite his poor health, 
is a guarantor who violated his duty because the robber is obliged to leave the victim 
in a safe place so that, for example, he would not be hit by a car. If a person sets a 
trap for a beast, but a tame dog accidentally gets caught in it, then there may be 
liability for animal cruelty (Robinson, 1984: 110). This is a particularly important case 
for legal entities that often appear in the role of investors of certain projects that, 
during their realization in society, represent the creation of danger. The legal entity 
must provide the person in charge of the realization of the project, with all the means 
to prevent possible consequences that may arise as a result of the realization of the 
project. 
 
The controversial question is whether the person who caused the danger is obliged 
to take rescue action because the endangered or injured person could have helped 
himself, or if there were other people present on the spot who could have provided 
that help. Some authors analyze whether a person unknowingly or knowingly created 
the danger. Namely, the difference would be whether one naively or accidentally put 
another in danger (Commonwealth v. Cali, 247 Mass. 20, 24-25, 141 N.E. 510, 511 
(1923) in which case the defendant accidentally caused a house fire but did not 
attempt to put out the fire, unlike a case where the defendant in self-defense 
defended another person, shot and wounded the attacker, and then was not required 
to seek medical attention for the attacker (King v. Commonwealth, 285 Ky. 
654,659,148 S.W.2d 1044,1047 (1941)). It must not be forgotten here that it is a 
question of intent and negligence. In this case, there is a liberal and a restrictive 
understanding. According to the liberal understanding, liability could only exist if a 
person had committed a previous criminal offense (for example, if he causes a traffic 
accident by breaking the rules and fails to help an injured pedestrian, but not if the 
60 LEXONOMICA.   
 
traffic accident happened by accident and the driver obeyed all the rules). According 
to the restrictive understanding, responsibility would also exist if some non-criminal 
legal norm (morality) was violated. Therefore, according to the Croatian legislator, 
the correct interpretation is that the person who caused the danger is obliged to 
provide all possible help even when there are other people nearby who can provide 
help. Anglo-Saxon law here starts from causation and analyzes it alone as the basis 
of the guarantor duty (Ambos, 2020: 37-38). 
 
6 Culpability of the guarantor 
 
When analyzing the guarantor's duty, it is necessary to start from his culpability, and 
it is not enough to consider only the fact whether a reasonable observer judged that 
there is a duty to act. Some authors even consider the motivation when analyzing 
acting and omission, however, motivation may or may not influence culpability 
(Androulakis, 1963: 115). The practical test of intent at omission is to ask the 
offender during his act of omission whether he is doing "this and that" (what the 
legal duty requires of him), and if the answer is no, and such an answer is given based 
on the facts and circumstances of which he is aware, then it is an intent (Hughes, 
1958: 604). Intent at omission is a decision between omission and possible acting 
(BGHSt 19, 295, 299). The intent to commit a criminal offense consists of the will 
not to act with knowledge of all the objective characteristics of the criminal offense, 
and the awareness that aversion of the threatening consequences is possible. In the 
case of omission, the guarantor must be aware of the existence of a situation that 
requires acting, as well as his possibility of taking action (Novoselec, 2016: 132-133). 
 
Some authors do not see the difference between voluntary muscle movement and 
omission (Fletcher, 1994: 1443), because voluntary movements are also important 
for determining culpability. Thus, in Anglo-Saxon law, it is debated whether turning 
off the devices that keep the patient alive is a conduct of acting or omission (Ingle, 
2016: 762). Theorists agree that it is difficult to prove intent at omission. The theory 
in the UK holds that for an attempt it is not necessary to prove causation, but 
causation is important because, if it doesn't exist, we may be speaking about an 
inappropriate attempt (Palmer, 1999: 164). However, at least in the continental legal 
system, including the law of the Republic of Croatia, it is wrong to introduce the 
concept of causation into the concept of conduct, because conduct is the first 
element of the formal concept of a criminal offense, while causation is part of the 
being of a criminal offense (second element of the formal concept of a criminal 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 61. 
 
 
offense). The situation of omission is problematic, and can often be described as 
negligence. Here, it is important to often analyze the guarantor obligation or the duty 
of supervision and to specify the individual case, and it must not be allowed that all 
criminal offenses by omission are constituted as criminal offenses of negligence 
(Roxin, 2003: 655). 
 
During omission, it is typical that sometimes a person may not even be aware of the 
duty to act, that is, he is not aware of the circumstances that require him to act. 
Subjective characteristics also play a role in criminal offenses. The existence of an 
intent that includes awareness and want or acced to the realization of the objective 
characteristics of the criminal offense is certainly necessary. However, omission lacks 
the realization of the required acting. Omission by intent is the stage between the 
decision not to act and possible acting. Therefore, the perpetrator must realize that 
preventing the consequences is possible. Intent also includes awareness of the 
circumstances that make a person a guarantor (Schmidt, 2008: 302). Therefore, the 
perpetrator must: knowingly not act even though it is clear to him that it is possible 
to avert the consequence, understand that his omission is causally connected with 
the possible occurrence of the consequence, and be aware of all the circumstances 
that are essential for the existence of the position of guarantor. Croatian judicial 
practice and legal literature also analyzed the case of a young man who gave heroin 
to his girlfriend, who died, because he and his mother did not call the emergency 
services (Novoselec, 1994: 343-346). The court correctly determined that the young 
man was a guarantor because of a previous dangerous act, and that the mother had 
no duty to supervise the sources of danger, and that she was not a guarantor because 
the son was of legal age. Nevertheless, in this case, the question of the young man's 
responsibility for intent or negligence arose. It is important to emphasize that the 
intent at omission has its specifics, but in this case, where the young man made the 
decision not to call the emergency services, there is no difference compared to the 
intent at acting. The 8-hour period in which the girl's agony lasted without calling 
for medical help, when over time it became obvious that the measures of help that 
the young man provided to her were ineffective, certainly means that he acceded 
with the fatal outcome, so this case should have been about indirect intent, not 
punishment for causing death by negligence. 
 
If the perpetrator is not aware that he is a guarantor, then he is in a mistake of fact 
(mistake about a statutory element of a criminal offense), which leads to the 
exclusion of culpability. If a father sees a child drowning in a lake without knowing 
62 LEXONOMICA.   
 
that it is his child, his mistake about the guarantor's position is in his favor, and he 
will be responsible for Failure to Render Aid. In the given example, there would be 
no murderous intent on the part of the father if he did not know that it was his child. 
The situation is different if the perpetrator is in a mistake about the awareness of the 
guarantor duty. A mistake about the existence or limits of the guarantor obligation 
is a mistake of law (mistake about the unlawfulness). A mistake about the guarantor's 
position is a mistake of fact, and a mistake about the guarantor's duty is a mistake of 
law (Wessels and Beulke, 2000: 245). Whoever sees his son drowning, but believes 
that he is not obliged to save his child, acts in the mistake of law. (Schmidt, 2008: 
303) A father who knows that he is the child's father, but thinks that in a situation 
where the mother does not feed the child, he is also not obliged to feed the child, 
acts with the intention of murder, but in the mistake of law. If there are subjective 
characteristics of the nature of the criminal offense (for example, motive), it is 
necessary to prove them to the guarantor, as these are circumstances that can be 
imputed only to the person who acts with such subjective characteristics. 
 
In the case of a criminal offense, because the realization of the being of the criminal 
offense manifests the ability to act is necessary to analyze whether there is a 
possibility of excluding behavior from the concept of conduct (Roxin, 2003: 631). If 
there is no possibility of excluding conduct, being of criminal offense, or 
unlawfulness in criminal offense of omission, then culpability should be analyzed in 
the frame of mistake. Therefore, it can be concluded that the perpetrator's intent 
according to the current CCC includes awareness of the conduct and of the situation 
itself in which the duty to act is required. Therefore, the mistake of fact will exist if 
the person is not aware of the guarantor's position. If the guarantor believes that 
under the given circumstances he is not obliged to avert the occurrence of the 
consequence, the guarantor's awareness of the non-existence of the duty to avert the 
consequence belongs to the awareness of unlawfulness, so in such a situation it is a 
mistake of law. 
 
7 Conclusion 
 
The paper analyzed the legal position of the guarantor at unreal criminal offenses of 
omission from the aspect of unlawfulness and culpability. Namely, not everyone can 
be a guarantor, so it is necessary to consider situations from which guarantor 
responsibility undoubtedly arises to exclude the guarantor duty. Certainly, the 
process of proving culpability for criminal offenses of omission is more difficult 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 63. 
 
 
than for criminal offenses of commission. It is precisely because of this that it is 
possible to conclude that, although the guarantor may not be aware of the 
guarantor's duty, this does not mean that his liability will not exist depending on the 
mistake in which he acts. The aim of the paper was to determine whether 
interventions are needed in the term used by the Croatian Criminal Code, which 
refers to the situation when a person is "legally obliged to avert the occurrence of a 
consequence". It can certainly be concluded that the mentioned term is established 
in Croatian and foreign legislation and literature, and when it is understood through 
the prism of criminal law, it does not cause difficulties in its understanding. When 
interpreting this term, the emphasis should be on criminal law, not on misdemeanor 
or disciplinary law. Namely, since for the principle of legality is necessary that the 
criminal provision has a disposition and sanction in the Criminal Code or that the 
Criminal Code at least refers to the norm of other regulations, it is necessary to look 
for the sources of the guarantor duty primarily in criminal law and legal goods 
protected by criminal law, and not misdemeanor, civil or disciplinary, to fulfill the 
principle of legality. Certainly, this analysis must be done through the prism of the 
principle of fragmentation and subsidiarity. When analyzing the sources of the 
guarantor duty, it is certainly necessary to mention that, with today's understanding 
of society, the question is to what extent the members of society are aware of the 
guarantor's duties. Precisely for this reason, the indirect goal of the work was to 
enumerate and analyze specific situations of guarantor duties to make the obligations 
of individuals and responsible persons in the legal entity aware, which is also 
important for lex certa, i.e. the principle of legality following national and European 
courts. Vuletic correctly states that criminal responsibility is based on principles of 
legality and culpability that are different from objective liability. So criminal 
responsibility of legal entities should be determined on these principles and not only 
on the foreseeability of the consequence. The awareness and will of the members of 
the social community are certainly important for the normal functioning of the legal 
order. In legal theory, it is claimed that not doing anything is as valuable as acting 
and such a point of view should be supported by judicial practice. However, the 
paper shows that there is less case law for omission than there is for acting, and the 
reason for that lies in the fact that acting is easier to prove than omission. 
 
In the case of the actions of a natural person in a legal entity, the responsibility for 
omission comes to the fore, where members of legal entities as guarantors can be 
punished for not averting violations of certain legal goods by subordinates only if 
such a situation is under their control. In the same way, the theory of causality 
64 LEXONOMICA.   
 
justifies the possibility of imputation of the consequences for a larger number of 
individuals in legal entities. 
 
 
References 
 
Ambos, K. (2020) Core concepts in criminal law and criminal justice, University Press Cambridge, p. 
2-53. 
Androulakis, N. K. (1963) Studien zur Problematik der unechten Unterlassungsdelikte, Munchen 
Berlin Beck.  
Derenčinović, D. and Novosel, D. (2012) Zakon o odgovornosti pravnih osoba za kaznena djela – 
prolazne dječje bolesti ili (ne)rješiva kvadratura kruga, Hrvatski ljetopis za kazneno pravo i 
praksu, 19(2), p. 585-613. 
Dunbar, J. R. (2012) Criminal liability for omissions in Scots law, University of Glasgow. 
Fletcher, G. P. (1994) On the Moral Irrelevance of Bodily Movements, University of Pennsylvania 
Law Review, 142(1), p. 1443-1453. 
Horvatić, Ž., Derenčinović, D. and Cvitanović, L. (2017) Kazneno pravo Opći dio II, Pravni fakultet 
Zagreb. 
Hughes, G. (1958) Criminal Omissions, The Yale Law Journal, 67(4), p. 590-637. 
Ingle, J. (2016) Aiding and abetting by omission before the international criminal tribunals, Journal of 
International Criminal Justice, 14(4), p. 747-769. 
Josipović, I., Krapac, D. and Novoselec, P. (2001) Stalni međunarodni kazneni sud, Narodne novine 
Zagreb. 
Kurtović Mišić, A. and Krstulović Dragičević, A. (2014) Kazneno pravo, Pravni fakultet Split. 
Leavens, A. (1988) A Causation Approach to Criminal Omissions, California Law Review, 76(3), p. 
547-591.  
McCutcheon, J. P. (1993) Omissions and criminal liability, New Series, 28/30(1), p. 56-78. 
Mead, G. (1991) Contracting into Crime: A Theory of Criminal Omissions, Oxford Journal of Legal 
Studies, 11(2), p. 147-173. 
Mrčela, M. and Vuletić, I. (2012) Komentar kaznenog zakona Opći dio, Libertin. 
Mrčela, M. and Vuletić, I. (2018) Kazneno pravo pred izazovima robotike: tko je odgovoran za 
prometnu nesreću koju je prouzročilo neovisno vozilo?, Zbornik Pravnog fakulteta u 
Zagrebu, 68(3-4), p. 465-491. 
Novoselec, P. (2016) Opći dio kaznenog prava, Pravni fakultet Osijek. 
Novoselec, P. (1994) Sudska praksa, Hrvatski ljetopis za kazneno pravo i praksu, 1(1), p. 341-349 
Novoselec, P. (2003) Sudska praksa, Hrvatski ljetopis za kazneno pravo i praksu, 21(2), p. 965-972. 
Palmer, P. (1999) Attempt by Act or Omission: Causation and the Problem of the Hypothetical 
Nurse, Journal od Criminal Law, 63(2), p. 158-170. 
Radman, B. (2012) Načini počinjenja kaznenog djela s posebnim osvrtom na nečinjenje, Hrvatska 
pravna revija. 
Robinson, P. H. (1984) Criminal Liability for Omissions: A Brief Summary and Critique of the Law 
in the US, New York Law School Law Review, 21(1), p. 101-125.   
Rosenberg, R. M. (2013) Two models of „absence of movement“ in Criminal jurisprudence, avaiable 
at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326949 
Roxin, C. (2003) Allgemeiner Teil - Band II, C.H.Beck. 
Schmidt, R. (2008) Strafrecht - Allgemeiner Teil, Dr. Rolf Schmidt GmbH. 
Summers, S. (2015) EU Criminal Law and the Regulation of Information and Communication 
Technology, Bergen Journal of  Criminal Law and Criminal Justice, 4(1), p. 48-60. 
DOI:10.15845/bjclcj.v3i1.827  
Vuletić, I. (2023) Corporate Criminal Liability: An Overview of the Croatian Model after 20 Years of 
Practice, MDPI Laws, 12(2), p. 1-11. 
I. Vukušić: Natural Person and Legal Entity as a Guarantor in the Croatian Criminal Law 65. 
 
 
Vuletić, I. and Petrašević, T. (2020) Is it Time to Consider EU Criminal Law Rules on Robotics?, 
Croatian Yearbook of European Law & Policy, 16(1), p. 225-244. 
Wessels, J. and Beulke, W. (2000) Strafrecht - Allgemeiner Teil, Müller Heidelberg. 
Prosser, W. L. (1971) Handbook of the Law of Torts, West Publishing Co.  
 
 
 
 
 
 
  
66 LEXONOMICA.