Economic Crimes in the New Criminal Law

Economic Crimes in the New Criminal Law

Headnote

This paper presents the most important changes in economic crimes, which prepares the Ministry of Justice working group that prepared the draft of the new Criminal Code, which relate primarily to the criminal offense of abuse of trust in business operations, the criminal offense of fraud in business transactions and subsidy fraud, tax evasion and customs , then amendment insolvency offenses, offenses against the then market competition, changing money-laundering and concealment, and prescribe offenses against the capital market in the Criminal Code.

FirstWHY SHOULD remake of economic crime

It is not rare in the discussions on the reform of the Croatian criminal law has economic crimes stand out as those that require complete reconstruction.Current Croatian economic criminal law really lags behind its time.While we get the modern with the Companies Act, which is a reception of German commercial law, criminal law has not followed that path.Descriptions of some economic crimes in the Criminal Code are completely outdated.Some of them derive from the legal system based on social ownership and inappropriate to a new constitutional order of the Republic of Croatia, moreover, sometimes it comes to the so-called solutions.administrative socialism, such as the treatment of abuse of office (Article 337 of the CC), but also on some other economic offenses as criminal offenses against official duty, which dates from the period when the individuals in the economy is equated with official people.Abuse of authority in business activities from cl.292ndCC - Yugoslav legislation introduced in the 1959thto combat "fraud useful" - still stubbornly persists, despite the difficulties imposed by both theory and practice.

The need for modernization of the criminal law has been related to the forthcoming Croatian accession to the European Union, which requires harmonization of national criminal justice systems, especially in the field of economic criminal law, and by providing competition of prohibited agreements (cartels), punishing fraud to the detriment of the EU budget , bribery in business transactions, insider trade and Fig.1 The explicit commitment to harmonize Croatian law with the EU has been ongoing since the enactment of the Stabilisation and Association Agreement between the European Communities and their Member States in 2001, according to which Croatia is obliged to harmonize their legislation with the acquis communautaire by 2011.year.In this regard has already done something (eg introduction into the Criminal Code provisions on fraud to the detriment of the EU), but still not enough.

Weaknesses of the provisions relating to economic crimes come to the fore in their application.Descriptions of the works it legally are naked, and some of them overlap (especially the abuse of power and authority under Art. 337 of the CC, and abuse of authority in business activities from cl. 292nd CC, of ​​which more will be said later), which had no actual difficulties in practice.

Ministry of Justice working group that prepares new draft Penal Code was discussed on several occasions about how to organize economic crimes.A consensus was reached that the work is no longer being interspersed with two heads, as in the present Criminal Code (offenses against the safety of public transport and offenses against official duty), but they should be grouped in a separate head called: an economic crime.Here we outline the most important changes that are proposed in this area.

SecondNEW CRIMINAL OFFENSE IN ECONOMIC ABUSE OF TRUST BUSINESS

Under this name suggests the offense, which is the text to read:

(1) Whoever violates the economic business attitude of others and duty to protect the property interests of which is based on the law, the decision of the administrative or judicial authorities, transaction or relationship of trust and thus obtain for himself or for another fi a physical or legal person illegal gain or otherwise to the one whose property interests are required to take care causes damage, shall be punished by imprisonment of six months to five years.

(2) If the offense referred to in paragraph 1this article has resulted in unlawful financial gain or caused substantial damage, the perpetrator shall be punished by imprisonment of one to ten years.

This is not a theoretical novelty.Served as a model for the offense Untreue (literally translated: infidelity, disloyalty, and freer translation: abuse of trust) of § 266 German Penal Code, which became a model for many national laws, primarily those from German-speaking (§ 153 Austrian Criminal Code and Art. 158th Swiss Penal Code), but also for those of Northern and Central Europe and the Far East and Latin Amerike.2 Besides the direct appropriation of property entrusted to the management, it includes a number of other criminal acts that have the managerial class as a result of damage to the property.This service will also allow the harmonization of Croatian economic criminal law with most members of the European Union, given the imminent accession to the European Union is not unimportant, in addition, it allows the Croatian lawyers that through insight into the literature and racial those countries easier Snada in resolving individual cases, especially when it comes to the contentious areas such as risk activities, approving dubious loans, creating "black funds", causing damage to the concern, the approval of donations, etc.

Proposed for the offense rests on the idea that all companies who has the care of someone else 's property must fulfill that duty conscientiously and in the case of otherwise responsible for any damage caused to the property, whether it is caused by appropriating or otherwise.Criminal offense of criminal activity covers the management structures (management) of the Companies Act (the members of management companies, directors of limited liability companies, members of supervisory boards, etc.).What is lex specialis in relation to the existing criminal offense of abuse of trust from cl.227thCC, which would commit the remaining assets entrusted fi as well as natural persons outside economic activities (parents, guardians, attorneys, etc.) .3 Although his description starts with "who", it is delictum Own.The perpetrator is the one who is in business operations must take care of the property entrusted to him under the law (eg, a member of the administration traded company), a decision of an administrative or judicial authority (eg bankruptcy administrator), legal work (eg, an attorney of the company) or other relationship of trust (eg, so-called. factual authority of the company).Further distinguishing characteristics of the damage to the property on which the offender is obliged to take care when placing an indecisive whether the damage was caused by confiscating property, or the long way, in practice, a claim would usually be the very face of the realized gain, but it can also occur when such use does not .How will no longer need to prove that the damage was behind there and someone's favor, makes it a crime.Qualifi ed form in the second centuryincludes the provision of substantial financial gain or causing substantial damage.Criminal frames remain essentially the same as in the traditional offense of abuse of office and authority of art.337thParagraph 3and 4CC.

On the subjective side will be sought treatment in order to obtain financial benefits (as in the current Articles 292nd paragraph 1 and 337 paragraph 3 and 4 of the CC).While dealing with such purpose and under current law, be regarded as subjective elements of the offense (subjective element of illegality), it is usually seen as synonymous with direct intent, hence, for example, in the judgment of the Supreme Court and Kz-556/03 incorrectly assume that the criminal work of art.337thParagraph 4CC can only be committed with direct intent.The literature and the judicature of countries that have "Untreue" or by another criminal offense no doubt that it can be committed with indirect intent, 4 this will especially come into account in risky business when the perpetrator is in excess of its powers calculated with the possibility of damage, and on her agrees.Dropping treatment in order to obtain illegal material used in the proposed offense will remedy any concerns about the subjective element so that it will be sufficient and dolus eventualis.

Abuse of position in business operations as crucial and central economic offense will include four current penal offenses unconscionable business operations (Art. 291st CC), abuse of authority in economic transactions (Art. 292nd CC), concluding unfavorable contract (cl . 294th CC) and abuse of office in part related to the responsible person (previous cl. 337th paragraphs 3 and 4 of the Criminal Code).These offenses will be deleted in their entirety, except for abuse of power and authority under Art.337thCC, which will remain, but only as a clerical crime.

Misuse of trust in economic transactions primarily comes into place abuse of his position of cl.337thParagraph 3and 4CC in part related to the offender as a responsible person.Reducing the crime to officials as perpetrators will remedy already mentioned unsustainable situation whereby offenses MANAGEMENT treated as civil service.Also eliminates a number of weaknesses it legally cl.337thCC that is already been mentioned in the literature (conformance description service relations actions, and not those of the economy, lack of logic in the third paragraph under which the gain is realized actions to take in order to obtain non-pecuniary benefits, highlighting the damage caused in paragraph 4, but not in paragraph 3, it is unclear defi ned subjective element, and the differing treatment of the elements in paragraphs 3 and 4, etc.).

New work shall cover the entire offense signing a disadvantageous contract from cl.294thCC, that of abuse of power and authority under Art.337thParagraph 3and 4CC differs only in the subjective element (not required treatment in order to obtain financial gain).As will now be sufficient to establish that caused material damage, a new offense will cover the current and conclude a disadvantageous contract.

The same goes for the offense of negligent economic activities (Art. 291st CC).De lege lata, it is difficult to demarcate crime from entering into harmful contracts, it would have been, for example, cases of causing damage by a legal transaction (eg, improper storage of goods), which will also be covered by the new offense of abuse of trust in economic transactions.As you can see from the statutory text, the offense of negligent economic business contains basic idea of ​​a new criminal offense of abuse of trust in economic transactions, but in a less precise manner, where particular criticism deserves the title deeds because the term "unconscionable" indefinite, especially in his subjective components: it includes malpractice and negligence?Jos was once case law held that the offense of negligent operation of the economy from cl.213thCriminal Code can be committed negligently, 5 and this position can be found in relation to unconscionable business operations in recent literaturi.6 Now, however, will not be nikve doubt that the abuse of trust in economic transactions exclusively intentional tort.Abolition of negligent economic business shall lift the inconsistency in cl.291stParagraph 2CC when it comes to causing bankruptcy, although this matter is a criminal offense to cause bankruptcy, so there should be regulated.

Proposed for the offense justifies the abolition of the current offense of abuse of authority in business activities from cl.292ndCC, which in the literature rightly called "a relic of the past." 7 The latter offense in its basic form (first century), designed as a felony endangering the abstract - it is not required for any other benefits for which the perpetrator is going to be obtained, and ( It's only qualified katorna circumstance in paragraph 2) - which is the work got too wide contours.It has failed because it legally are intertwined with other offenses.This primarily applies to the general clause of subparagraph 6first paragraph ("or otherwise grossly violates the law or the rules regarding the use and operation of asset management"), because this is essentially the action contained in the description of the offense of abuse of office and authority under Art.337thParagraph 3and 4CC.Since the amendments to the Criminal Code of 2006.The provision of the art.337thParagraphs 1CC so that the abuse of power and authority can be made in favor of the legal person, in cases where a legal person obtains benefits, the provision of Art.337thParagraph 4CC (which is attached to the 1st century) hardly differs from those in the art.292ndParagraph 2CC when it's related to the sixth subparagraph of paragraph 1, in both cases, in fact, be obtained similarly described actions resulted in a substantial legal entity.Abolishing cl.292ndCC will come off in practice, still unresolved dilemma of which of these two provisions give priority because it will be a new criminal offense of abuse of trust in which will be sufficient to establish detriment represented legal entity.Neither the abolition of other forms of abuse of authority in business activities listed in the first five subparagraphs cl.292ndParagraphs 1CC will be nothing to lose because they contain the described behavior already covered by other offenses, and in turn there where the described actions can not be subsumed under any other criminal offense, there is no justification for punishment.We shall show that in all five incrimination:

- Form the first subparagraph(Creating a "black funds") and is now a criminal offense of abuse of office and authority under Art.337thParagraph 3or 4CC because it has been the formation of such funds represented net assets of the legal person, and this will be proposed by abuse of trust in economic transactions; 8