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.
First WHY 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Criminal Code are completely outdated.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. 292nd CC - Yugoslav legislation introduced in the 1959th to 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.
Second NEW 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 1 this 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. 227th CC, 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
century includes 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. 337th Paragraph 3 and 4 CC.
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. 337th Paragraph 4 CC 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. 337th CC, 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. 337th Paragraph 3 and 4 CC 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. 337th CC 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. 294th CC, that of abuse of power and authority under Art. 337th Paragraph 3 and
4 CC 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. 213th Criminal 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. 291st Paragraph 2 CC 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. 292nd CC, 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 6 first 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. 337th Paragraph 3 and
4 CC. Since the amendments to the Criminal Code of 2006. The provision of the
art. 337th Paragraphs 1 CC 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 4 CC (which is attached to the 1st century) hardly
differs from those in the art. 292nd Paragraph 2 CC 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. 292nd CC 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. 292nd Paragraphs 1 CC 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. 337th Paragraph 3 or 4 CC
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
- Form the second subparagraph (Fake documents and balance) is covered by the
offenses breach of running business books or forgery of an official document;
- A form of subparagraph 3 (Obtaining illegal benefits) included in the offense of
fraud, according to the proposal, and the new offense of subsidy fraud;
- A form of subparagraph 4 (Denial of the budget) is covered by tax evasion if the
denial is preceded Failure to report or filing an incomplete tax return, but if not paid
tax that is duly registered, this is a default of the debt is not a criminal offense; 9
- A form of subparagraph 5 (Unspecified spending funds) as it relates to credit funds
is fraudulent, and in other cases it is not a criminal offense.
The proposal to abolish the four listed crimes has prompted concern that the courts
after the enactment of the new Criminal Code can mass liberated charges for
specified offenses committed before its entry into force, referring to the new law as
a looser. Here, however, we should bear in mind that the repeal of an offense does
not necessarily mean that it has been decriminalized. It can continue to exist in
some other criminal act, of which there is already case law.This will happen when
the offense between the old and the new law there is no legal continuity, that is,
when these offenses belong to the same type of injustice. If continuity is preserved,
ie, if only modified effect be reduced the same offense, the court shall apply either
old or new law, whichever is the perpetrator blazi.10 Apply to this understanding of
the abolished economic crimes, leads to the conclusion that a new criminal offense
of abuse of trust in economic transactions usually protects the same legal right as
these offenses (property entrusted offenders) and that this was the same method of
attack on the good (and the appropriation of its assets or otherwise
damaging). Typically there will be continuity between the reversal of economic
crimes and related offenses under renewed text so it has to apply the law that was
in effect at the time of the offense because the new law will not be looser (Art. 3,
paragraphs 1 and 2 of the CC ).
If such an interpretation would not be accepted, it would prevent not only the
reform of economic crimes but also a series of other crimes. Existing difficulties in
turn should alleviate the timely preparation of all judicial officials who apply the
Penal Code.
3rd Fraud as economic crimes and subsidy fraud
One of najzastupljenih economic crimes in the case law, fraud in business
transactions, will suffer only minor modifications. Whilst fraud in business
transactions are ultimately unnecessary (in the system based on private ownership
does not matter if it obtains the benefit of Physico or legal person) and the modern
criminal codes are not separated from "ordinary" fraud, was to be as the most
common economic crime keep work if these offenses governing the particular
head. Weakness now current text of Article 293 Paragraphs 1 CC is that he, as well
as specific conditions fraud unnecessary stresses "the use of payment instruments
uncollectible" because anyway below follows the general clause whereby bringing
confusion can be made in another way. Such a description of the offense, however,
has led to the fact that they were implicated only in cases where the perpetrator
raspolagatelja leads to a misleading document (uncollectible check, a certificate
proving its solvency, etc.), although the fraud in business transactions can be made
without it, among other things and implication (who order goods, tacitly declares
that he is able and willing to pay for). Deleting "Use uncollectible payment
instruments" will be encouraged, therefore, wider application of this offense.
A special form of business fraud is fraud at the expense of fi nancial interests of the
EU. The scam worked out in detail in the Convention for the Protection of fi nancial
interests of the European Communities of 26 July 1995, which entered into force on
17 October 2002. It was known as PIF.11 Its purpose is to ensure the harmonization
of national legislation with regard to fraud to the detriment of the EU budget. In line
with the PIF's and Corpus juris for the protection of fi nancial interests of the EU,
which in Article 12. First provides national legislators model such fraud.In this way
seeks to protect fi nancial interests of the European Union, both in terms of its
expenditures (punishment fraud upon granting subsidies or assistance from the EU
budget), but also in respect of its income (punishment of fraud in settling tax or
duties EU member states, of which part belongs to the budget EU).
When it comes to protecting the EU budget expenditures, existing fraud in business
operations in the Croatian Criminal Code can not be entirely sure that goal, because
it is also designed as a proprietary offense with property damage as a necessary
feature, and it is assumed, and bringing in a misleading raspolagatelja budgetary
funds. Such a concept of fraud is narrower than the concept that defi nes ga PIF in
cl. First According to this provision is sufficient The presentation of false or
incomplete information or statements, which, indeed, aimed at bringing benefits to
the perpetrator, but not necessarily pecuniary damages for the EU in the sense in
which that term is understood in the classical criminal offense of fraud, cause we
have a grants. So defi ned fraud primarily means disponiranja violation of freedom,
in this case the freedom of states to dispose of its assets. Also not needed
raspolagatelja misconception that, moreover, it can be in cahoots with applicants for
subsidies. Furthermore, fraud to the detriment of the EU budget can involve the
improper use any otherwise properly obtained funds.
For these reasons, the Croatian legislator rightly decided to prescribe a special fraud
to the detriment of the EU. He did it the first amendment of the third October
2007. (Official Gazette 110/07) so that in the Penal Code introduced two new
offenses, one called "special cases of fraud to the detriment of fi nancial interests of
the European Union" (Art. 224b CC), and another called "abuse of authority in
conjunction with funds of the European Union "(Art. 292a CC).On the occasion of
criticism of these provisions, the legislative amendments to the Criminal Code of
15 December 2008 (Official Gazette No. 152/08) blanked two specified crimes and
instead laid down in Article 224b new offense called "fraud to the detriment of the
European Communities." This provision provides, on the one hand, the criminal
enforcement budget of the EU when it comes to its expenditure (paragraphs 1 and
2), on the other hand when it comes to its revenues (paragraph 3).
Regarding the allegations of fraud to the detriment of EU budgetary expenditure
(subsidy fraud), the Working Group decided to accept the concept of the current
art. CC 224b, that is, on the one hand incriminate fraudulently obtaining subsidies
(paragraph 1 of the new article on subsidy fraud), the other using subsidies contrary
to its purpose (paragraph 2 of this article). However, by considering these issues,
the Task Force has concluded that Croatia needs the same protection afforded by
the EU budget and provide its national budget, which means that the subsidy fraud,
must be expanded and the subsidies granted by the Republic of Croatia from its own
funds (State aid), so when the new newsroom Article subsidy fraud domestic
subsidies fore, to the concluding paragraph, which defi nes the term subsidies,
subsidies that are provided from the EU budget equated with a national
potporama.13 Thus, the term includes subsidies to state title aid as a subsidy
granted by the RC, and grants and aid granted by the EU (either directly or through
state bodies).
In a similar manner will resolve fraud to the detriment of the EU budget revenues,
as will be described in more under 4
4th TAX EVASION AND CUSTOMS
In the area of taxes and customs duties are proposed replacement several times.
The present offense "tax evasion and other charges" (Art. 286 KZ) should be
replaced with new criminal offense called "tax evasion and customs." Customs are
actually kind poreza.14 Croatian law treats as well as customs and taxes, because
both are considered forms of public duties (Article 2 of the General Tax Code). If so,
there is no justification to evasion is treated differently than the tax evasion. This,
however, does not mean that the offense from customs supervision from
cl. 296th CC made redundant. It does not protect the interests of the state Skalna fi,
but of national security or other national interests, which is evident in the current
wording of cl. 296th Paragraphs 1CC where it can no longer be placed under attack
law "exceeds the amount of goods or thing of great value," as in earlier sections, but
goods whose production and distribution is restricted or prohibited (weapons,
drugs, cigarettes).Basically the same route going and German Criminal Law Act
because their benefits (Abgabenordnung) first in § 369 equalizes the tax and
customs offenses, and afterwards, in § 370 prescribes tax evasion, and § 372
"violating the ban" (Bannbruch), which fits our offense from customs inspection.
On the other hand, proposes the abandonment of the current solution, according to
which the offense includes tax evasion and tax contributions, although the
contributions form of public benefits (according to Art. 2nd General Tax Code the
legal fees, concession fees, fines for process violations, etc.). In relation to them are
sufficient sanctions, especially if one has in mind the view of the European Court of
Human Rights in the case Maresti that we are avoiding double punishment for the
crimes and offenses. Exceptions are only contributing to the health and disability
insurance, which default shall, as representing a separate criminal offense (Art.
115th CC), and this should be extended to pension contribution, what should be the
subject of a separate offense.
Tax evasion should not be limited to legally earned income, as is done in the present
text of Art. 286th Paragraphs 1CC, because in this way, citizens engaged in illegal
activities led to a more favorable position than those engaged in lawful activity (for
illegal activity, indeed, come to mind of Illegal production of art. 296th CC or illicit
trade in art. 297th CC, but with very lenient sentences). Such a decision is contrary
to Article 10 Paragraph 2 General Tax Act whereby taxed "income earned without
legal basis."
Under the existing provisions of cl. 286th Paragraphs 1 CC, for the achievement of
being the offense enough to give false information, and does not seek to be what led
to the damage (§ 370 German otherwise of the benefits).Therefore, we propose that
the characteristics and performance of the works is to calculate damages in excess
of 30,000 kuna, with the damage in the event of false statements made in the
reduction of tax liabilities in the amount specified, and for reporting in identifying a
tax liability in the amount specified. That means it will not be enough, as now, to just
avoid paying a certain amount (now 10,000 million), but that's really the
determined set of obligations than the one to be established by law.
The criminal offense of tax evasion and customs fraud and should be integrated to
the detriment of the European Union's revenue because such fraud consists in the
evasion of taxes and duties that the EU member states are also EU income. In this
way you will eliminate the failure of the legislator who is customs fraud to the
detriment of the first amendment to the EU from 2007. entered in
cl. 298th Paragraph 4 CC, that is after the amendment in 2008.again prescribed in
cl. 224b paragraph 3, without simultaneously wiping cl. 298th Paragraph 4 (Which
means that the current applicable cl. 224b § 3 and art. 298th Paragraph 4 contains
the same criminalization, but dealing with different words). For these reasons, in
the framework of a new criminal offense of tax evasion and customs suggests the
conclusion paragraph, according to which, the provisions of the preceding
paragraphs apply to the perpetrators in those described actions to diminish the
funds of the European Union.
5th BANKRUPTCY OFFENCES
Current crime of abuse of bankruptcy cl. 282nd CC is conceived as an abstract felony
endangerment, ie it is sufficient that certain assets of the debtor othering discerned
in crisis (state insolvency or inability to pay) could only lead to
bankruptcy. Similarly, the solution lies in Austrian criminal law (§ 156 Austrian
CC). This is a criminal offense got too wide contours. Besides his name is inadequate
because it is not clear how this perpetrator abusing bankruptcy if bankruptcy does
not occur. Culpability should be limited to cases where the actions of the
perpetrators actually led to the suspension of payments or bankruptcy proceedings,
as required by § 283, paragraph 6 German Penal Code, whereby the German
doctrine and the consequences for as objective conditions of criminality. It is not
justified to punish the perpetrators of that messy business reduced its assets (or the
assets of the legal person represented), but after overcoming the crisis, to meet its
obligations and avoid bankruptcy. In this context, the working group to propose the
amendment, including the name of the offense (almost causing bankruptcy or
bankruptcy).
On the other hand, is proposed to extend to the case of criminality and to cause
insolvency or inability to pay. If you are punished certain acts committed in an
already existing state insolvency or incompetence for payment, then, in particular
should be punished the same actions if they bring to the situation (and § 283 para 2
German CC). In this way also the downloadable content qualifi ciranog shape
negligent operation of the current economic cl. 291stParagraph 2 (To be abolished).
The latter seeks the way to the acts which are the characteristics of an accurate
description, which uses appropriate texts of German and Swiss Penal Code. Be sure
to drop the word "suspending charging their claim", which entered the probable
errors in the text of Art. 282nd Paragraphs 1 CC (omitting the collection of claims
was later described as one of the leads). Opinions are divided over whether to keep
the existing provisions of Art. 282nd Paragraph 2 CC by which punishes the
responsible person in the legal person for causing the bankruptcy. According to one
view, the offense can be committed by anyone, so it means a responsible person
representing the entity. On the other hand, points out that it would be no legal text
of these provisions could be understood to refer only to the borrower who is
personally able to insolvency or inability to pay (eg sole trader).
The amendments are proposed in relation to an offense under Article preference of
creditors. 281st CC. Preferential treatment of creditors is privileged to cause a form
of bankruptcy because a lender compensates though, so it is illogical for it to be in
front of the abuse of bankruptcy, as well as the current penal code. For these
reasons as well as for the previous offense, it should be treated as perpetrators and
its representative (which is now said to cl. 281 of 2nd CC) and here predicted as an
objective condition criminality open proceedings. How and the offense leads to
bankruptcy, is now punishable by up to one year is too low and should consider
boosting its upper measures (eg two years in prison). But it will be a criminal
offense should be limited to the so-called. incongruent settlement, ie the payment of
creditors when this one has no right to set-off, usually prior to the maturity of claims,
or in unauthorized manner, for example by a blocked account. There is no
justification for punishing the borrower which is a legally valid way pay its
obligations when one of vjerovnika.15
6th CRIMES AGAINST COMPETITION
The existing Criminal Code contains two offenses against free competition, and they
are violating equality in the exercise of an economic activity (Art. 280th CC) and
create a monopolistic market position (Art. 288th CC) and two crimes against fair
(fair ) market competition, namely misleading customers (Art. 284th CC) and unfair
competition in foreign trade operations (Article 289 CC). In the wider sense, they
can be in the last group counted offenses bribery in business transactions (Articles
294b 294.ai CC). Except the last two, which were introduced by the amendments of
2006. year, these crimes are being taken from the former Yugoslav legislation and
not in accordance with the Law on Protection of Competition (Official Gazette
79/09).
When it comes to crimes against free-market competition (now 280th and 289th
articles CC), the question arises whether the matter altogether regulated by the
Criminal Code. Is not protection of free market competition is provided by the
Competition Act, which involves the responsibility for the offense ("administrative
sanctions"), and to enter into restrictive agreements, abuse of dominant position
and engaging in prohibited concentrations with very sensitive sanctions (penalties
practically amounting to 10% of its total annual turnover) which expresses the
Agency for Competition? The difficulty is that the law of the Competition envisioning
the imposition of these measures only to entrepreneurs, but not against responsible
persons when undertaking legal persons. For these reasons suggest the crime of
violation of freedom of competition and to anticipate punishment (imprisonment up
to three years) by the central managers in firms that contrary to the provisions of
the Competition enter into a prohibited agreement, which is the most serious form
of attack on free market competition.
In particular, it should provide stricter penalties (imprisonment up to five years) for
fraud in the procurement which consist of arrangements of competitors in
procurement (which are increasingly taking shape!). Therefore, we propose a new
offense called "fraud in the procurement," modeled on the German Criminal Code §
298 ("agreements limiting competition in public procurement") and
Art. Second Corpus Juris ("fraud in the contest"). It commits an offense to anyone in
the public procurement procedure put an offer based on a prohibited agreement.
As an offense against fair competition moves the misleading advertising, which
would replace the current criminal act of misleading consumers cl. 284th CC. This
work makes anyone offering goods or services to a wider circle of people sent
provides false or incomplete data that are essential to contract and that reasonable
consumers could be misleading. Incrimination misleading advertising (false
advertising) suppresses the unfair competition. This act of fraud differs in that the
buyer of the goods or the client does not suffer damage (or she can not prove it), and
not even ask for proof of their error, but it is enough that there is a danger in
bringing misleading (abstract threat). Given that the false advertising can mislead a
wide range of individuals, it should be prescribed as a criminal offense. That is why
the protection of fair competition pays great attention in the EU.
The current text of cl. 284th CC has a number of drawbacks. Paragraph 1 limits on
false labeling of products in their marketing, but does not include false advertising
(which in turn limits the second century, the price of the product, and does not
include the quality, origin, components, weight, etc.). In both the item mentioned
only products, but services and can be subject to false advertising. For this reason,
even the title of "misleading customers" because it does not match the service users
are not customers, so we suggest "misleading advertising".
7th Money laundering and disguising
Adopting the Law on the Ratification of the Council of Europe Convention on
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the
fi nancing terorizma16 provisions of the Convention have become part of the
internal legal order of the Croatian. Entry into force of the Convention required a
modification Croatian Criminal Code, 17 which was done by adopting the Law on
Amendments to the Criminal Code of the 2008thgodine18 when the title and the
provisions of Article 279 Criminal Code amended in its entirety. According to the
Law on Prevention of Money Laundering and fi nancing of terrorism, money
laundering includes 19 engaging in any activity which conceals the true source
novca20 or other property that is suspected of being obtained illegally in the
country or abroad, including the replacement or any other transfer of money or
other such assets, conceal the true nature, source, location, disposition, movement
or ownership of or rights with respect to money or other such property and the
acquisition, possession or use of money or other such imovine.21 money laundering
offense is aimed at criminalizing money laundering is associated with corruption
and organized kriminalitetom22 and curbing illegal conversion of profit into the
seemingly legalnu.23 Also his incrimination protects the economic and fi nancial
system zemlje.24 Money laundering could also defi ne a process which aims to
provoke trace the real source of illegally acquired money, whereby exploiting the fi
nancial, and increasingly of non nancial sector and struke.25
The working group for the drafting of the Criminal Code, respecting the controversy
around the issue of money laundering conviction of his own criminal activity, the
existence of the predicate offense, the relationship of the criminal offense of money
laundering and concealment (Article 236 CC) and taking into account the concept of
property as stated in the Convention of the Council Europe, 26 took the view that
Article 279 requires amendments, and Article 236 (Concealment) and modeled on
Article 9 Convention and in Article 6 UN Convention against Transnational
Organized kriminaliteta.27
Article 6 UN Convention requires the punishment of willful commission of
conversion or transfer of property, along with 28 of her knows that this is a benefit
of criminal offenses, 29 for the purpose of hiding or concealing ing ing illicit origin of
the property, or aids attention to any person in the uk ljucenoj begins her fortified
criminal AD works to avoid legal pos fects of his work, then hiding or concealing tion
true nature, source, location, disposition, movement or ownership of attention or
rights relating to property, knowing that such property is repre tion proceeds of
crime. Also requiring attention kaznjavanje30 acquisition, possession or use tion of
the asset, the know it at the time of receiving the attention, it is one of the benefits of
the offense and the participation of it, merge it or negotiate it go the secret of her
attention, her attempt to go the attention and her helpers, the encouragement of her,
makes her and counseling her for it go the attention of any of the offenses g Prama
Article 6 UN Convention. Also, according to the provisions of Article 6 second
paragraph, each State Party shall endeavor to apply paragraph 1 Article 6 At the
widest list of predicate offenses, which is the Republic of Croatia and made
amendments to the Criminal Code already in 2000. year, and that means that it is
sufficient that the money originated from any criminal djela.31
Article 9 Council of Europe Convention requires that each Party shall adopt such
legislative and other measures as may be necessary to establish as criminal offenses
under domestic law the offenses were committed with the intention of conversion
or transfer of property, knowing that such property is proceeds, for the purpose of
concealing or disguising the illicit origin of such property or of assisting any person
involved in the commission of the predicate offense to evade the legal consequences
of their actions, then the concealment or disguise of the true nature, source, location,
disposition, movement, rights or ownership of property, knowing that is proceeds
and the acquisition, possession or use of property, knowing, at the time of receipt
that such property was illegal prihod32 and participation in, association or
conspiracy to commit, attempts to commit and aiding, abetting, facilitating and
counseling the commission of any of the offenses set out in accordance with Article
9 Convention of the Council of Europe.33
Furthermore, according to the provisions of Article 9 paragraphs 5 and
6 Convention, each State shall ensure that any previous or simultaneous conviction
for the predicate offense is not a prerequisite for a conviction for money laundering
and that a conviction for money laundering possible if it is proven that the property
was derived from the predicate offense, and that it is not necessary to establish that
the offense . How these issues are primarily procedural in nature (aka the previous
question), a proposal of the Working Group to amend the Criminal Code to the
Criminal Procedure Act to include provisions that permit such punishment.
Accordingly, the draft money laundering offense that would be an integral part of
the head of offenses against the economy and crime concealment, as follows: 34
Money laundering
(1) Who proceeds of crime transferred, replaced or converted with the aim of
concealing its illicit origin, shall be punished by imprisonment of six months to five
years.
(2) If the offense referred to in paragraph 1 this Article is committed in the fi nancial
or other business or the offender engaged in money laundering or any other
benefits under paragraph 1 this article of great value, shall be punished by
imprisonment of one to ten years.
(3) Who the fi nancial or other business to take action under paragraph 1 this
Article shall act with negligence in relation to the circumstances that the property
gain realized the offense, shall be punished by imprisonment of up to three years.
(4) If the gain in paragraphs 1 to 3 this article of crime committed in a foreign
country, shall be punished if it is an offense according to the law of the state where it
was committed.
(5) If a property gain in paragraphs 1 to 3 this article of crime committed in a
foreign state, the offender can be punished even if the act is not punishable under
the law of the Croatian and criminal proceedings will be initiated upon approval by
the State Attorney General.
(6) an offender who voluntarily contribute to the detection of the offense under
paragraphs 1 to 3 this Article, the court may remit the punishment.
Concealment
(1) Who proceeds the person knows that it is the second recorded offense conceals,
obtains, possesses or is being used, shall be punished by imprisonment of three
months to three years.
(2) The perpetrator of the offense referred to in paragraph 1 will not be sentenced
to more stringent than those prescribed for the offense with which he acquired
hidden thing / gain.
(3) If the offender is engaged in concealment or any other benefits under paragraph
1 this article of great value, shall be punished by imprisonment of six months to five
years.
(4) If the gain in paragraphs 1 and 3 this article of crime committed in a foreign
country, shall be punished if it is an offense according to the law of the state where it
was committed.
(5) an offender who voluntarily contribute to the detection of the offense under
paragraphs 1 and 3 this Article, the court may remit the punishment.
The notion of the high value is referred to as qualified katorna circumstance in both
criminal acts requires determination more closely, and so that the concept of "great
value" to be replaced exactly a cash equivalent.Alternatively, this can still leave law
jurisprudence more closely determination of the concept through case law, a closer
look: the legal opinion of the Supreme suda.35
The proposal of the Working Group in Article 279 concepts embodied Article 279 de
lege lata 'money, objects, rights and other benefits "covered by the term gain. As
noted above, the Working Group is managed primarily the definition of the concept
of property as set out in Article 1 paragraph b, of the Convention of the Council of
Europe, as well as the term proceeds from these conventions covering any economic
benefit that is directly or indirectly derived from or obtained by a criminal
djelom.36 How 'assets from the Convention of the Council of Europe and includes
one or indirectly caused by committing a criminal offense; Paragraph 1 Article
279 proposals of the Working Group is expanding the provisions in force, or being
prepared for possible doubts as to whether the money laundering of the first
paragraph Article 279 and the money that has been obtained through the property
for which the person knows that the proceeds of crime or whether it refers to
money, and that arose as a result of the investment of money, knowing that it is
acquired by a criminal offense.
Furthermore, the proposed provisions of the draft money laundering offense, in our
opinion, it seems uncontroversial as possible punishment for the concurrence of the
offense and the predicate offenses because of the difference in the object of
protection of predicate offenses and money laundering, but also because of the
actions suzivanja commission of the offense to carry the , exchange or conversion of
the proceeds djelom.37
Also, paragraph 1 Article 279 of the current amended to explicitly set as the target
offense, and in a way that the operations referred to in I'll have to take actions
aimed at disguising the illicit origin of the property, which also makes and its
subjective features. The Working Group is guided by Article 9 paragraph 1.a. Council
of Europe Convention when making such a proposal. It also did not need to hide
really happened. Supreme Court Hrvatske38 considers that the offense of money
laundering de lege lata the finished investing cash in a variety of jobs. Perpetrators
(former spouse) have put paid at least 5.6 million kuna from the sale of various
narcotic drugs in the purchase of real estate (apartments, office space and building
land), orocavali at various banks and short-term loans to, usually in the name of
close relatives, thus the committed the offense of money laundering. As for the good
of the guard of the offense, its position in the head of offenses against the economy,
ie, de lege lata, offenses against the security of payment and business operations,
impose the solution: his incrimination protects the economic and fi nancial system
zemlje.39 for Punishment acting negligently with the circumstances that we are
dealing proceeds realized crime is still retained (see and compare the proposal in
paragraph 3 to paragraph 4 de lege lata). As already noted, most importantly,
because of the possibility punishment for negligence, we think that the offense
under paragraph 1 can be committed with indirect intent. Also, it is accepted that
the de lege erase part of the legal text in force requiring that the proceeds of which it
seeks to "wash", "knows that the offense occurred," which would make clear that the
proceeds of crime objective circumstances of the offense. This is supported by the
provision of the UN Convention, admittedly procedural nature, to knowledge, intent
or purpose as an element of an offense may be inferred from objective factual
okolnosti.40
But instead of that knowledge of the gains of the offense, the commission of acts of
de lege would be held, if the task force does not change its stance, the existence of
the goal of concealing the illicit origin of proceeds. We think that if the perpetrator
was not sure, but agrees to cover up the illegal origin, enters the zone punishable
paragraph 1, 41 but it might be the words "in order to" replace it with "working" or
some other more appropriate words to clearly show that it is enough that the
offender consents to the act of concealing its illicit origin of proceeds. Specifically,
the term target of offenses known in German criminal law (German Absichtsdelikte),
and although the prevailing view is that the notion of a subjective attitude means
Absicht42 perpetrators analogous direct intent of first instance, it is not impossible
that with certain offenses term gain wider significance and to grasp and compliance,
43 which would be just in this part of the case.
That would constitute a criminal offense of money laundering or concealment must
be done about the transfer, exchange or conversion or concealment of proceeds of
crime, which means that only the concealment of illegally obtained money
dovoljno44 if not also not about monetary gain realized proceeds. The Republic of
Croatia has not seized the opportunity by making a reservation, or prescribing
catalog of offenses which must originate from illegal money, which means that 45 is
punishable zone to apply the money laundering offense is very broad, but it closed
only to offenses. Therefore it is very important to think about and that would be
considered a criminal offense behavior, such that a breach of competition rules to be
criminal acts, that will be a judgment prekrsaji.46 Maresti ESLJP47 impose
termination of running aggregation misdemeanor and criminal procedure and
requires demarcation of offenses and violations for the same injury, which just
working group to amend the Criminal Code and makes taking care violations and
crimes do not match.
Paragraph 3 Article 279 de lege lata is deleted because it is qualified katorna
circumstance that the offense was committed by a group or a criminal organization
de lege envision as a separate criminal offense.
The proposal in paragraph 4 Article 279 (Former paragraph 5) omitted the
reference to Article 16 second item and 3Criminal law is nepotrebno.48 If the
predicate offense committed abroad is also an offense under Croatian law, there is
no need to seek approval and even the State Attorney General (for the perpetrator
of the offense is not on trial in Croatia). However, if the gain in paragraphs 1 to 3 of
crime committed in a foreign state, the offender can be punished even if the act is
not punishable under the law of the Croatian and criminal proceedings will be
initiated upon approval by the State Attorney General. The new proposal of the
Working Group in accordance with Article 9paragraph. 7th Council of Europe
Convention, according to which each party ensures that predicate offenses for
money laundering extend to conduct that occurred in another state, and which
constitute an offense in the country, and which would have been carried out on the
territory of the Party, represented by the predicate offense. Each Party may provide
that the only prerequisite is that the conduct would have constituted a predicate
offense had it occurred in its territory.
As for the offense of concealing, the Task Force has not yet taken the stand from
which the head de lege this work is located. We believe that it should be continued
in the offenses against imovine.49 The concealment makes anyone gain the person
knows that it is the second recorded offense conceals, obtains, possesses or is being
used. Also, the obligation laid down in Article 9 paragraph 1 point B. The Council of
Europe Convention penalizing make it a crime to conceal, not a criminal offense of
money laundering. The above provision of the Convention obliges prescribing the
offense of concealing or disguising the legal nature, source, location, disposition,
movement, rights or ownership of property, knowing that such property is
proceeds. For nailing envisioning and milder penalty box. As can be seen from the
proposal, no more talking about concealing things, such as the decision in force, but
the proceeds that it includes and stvari.50
Working Group in the motion offense of concealing, unlike the money laundering
offense, has not adopted the proposal to de lege erase part of the legal text in force
requiring that the proceeds of which conceals, acquires, possesses or uses "knows
that a result of crime "because the punishment for such an offense should continue
to require that the perpetrator must be aware of all the characteristics of the offense,
and therefore that thing that comes out of concealing a crime. But as the money
laundering offense, we think there is enough indirect intent for the commission of
the offense. Also, for accuracy, it should be noted that the matter must be obtained
from each other, which clearly excludes the existence of a criminal offense in the
case of hiding things obtained their own criminal activity, which is not the case in
the money laundering offense, where possible concurrence of predicate offenses
and money laundering.
The proposed paragraph 2 eliminates inconsistencies in the crime of concealing de
lege lata, which allows it to prikrivatelj can be harder than punished perpetrators of
criminal acts from which derives thing, like the tiny kraðe.51 concealment may have
severe forms that require a thesis sentence, and in the third paragraph Proposes
qualifi ed shape, or crackdown if the offender engaged in concealing or disguising it
comes to gain large vrijednosti.52
In conclusion we note that the working group for the drafting of a new Criminal
Code regarding the proposed offenses of money laundering and concealment must
still take into account the recommendations of the Council of Europe control agency
for money laundering MONEYVAL A53 and still resolve several key issues listed
above before a final draft of the proposal to adopt the above Articles.
8th CRIMES AGAINST CAPITAL MARKET
Law on crimes against the markets are regulated kapitala54 four offenses against
the capital market, and this use, disclosure and recommending inside information
(Article 3), the manipulation of the market (Article 4), unauthorized provision of
investment services (Article 5) and unauthorized revelaing jobs tied agent (Article
6). As mentioned Act related to the matter which is regulated by the Capital Market
Act (OG 88/08, 146/08 and 74/09) and the by-laws pertaining to rules of conduct
capital market participants, such as the Regulations on conditions of
implementation of the program of purchase of own shares and stabilization
measures fi nancial instruments under which the exemption from the prohibition of
market abuse (OG 5/09), Rules on disclosure of inside information which directly
relate to the issuer and the issuer's legitimate interests DETERMINATION delay in
disclosure (NN 5/09), Ordinance on accepted market practices (OG 5/09) and the
Ordinance on manipulation and obligation to inform the suspect of market abuse
(OG 5/09), it is necessary for interpreting these crimes to resort to laws and
regulations that govern allowed behavior in capital markets. Also, it is important to
know the regulations on the capital market and the concept of domination and
control over 55 different fi nancial instrumentima.56
Capital Market Act in the Croatian legal system was transferred to, among others,
the Directive 2003/6/EC of the European Parliament and of the Council on insider
dealing and market manipulation (market abuse) .57 The law was introduced by
European standards in terms of abuse and trzista58 one of the objectives of the
regulation of capital markets and the "elimination of manipulation." 59 In this
regard, a very important leads CESR-A60 specifying which behaviors are considered
abuse of market kapitala.61 CESR's guidelines in their designated national agencies
to monitor fi nancial services cited three priority areas of action: to regulate what is
deemed compatible behavior in providing fi nancial services in the capital market,
which procedures are considered market manipulation, and the manner in which
the report or monitor suspicious transakcije.62 In this regard, the Croatian Agency
for Supervision of fi nancial services issued The Ordinance on manipulation and
obligation to inform the suspect of abuse trzista63 which stipulated that procedures
can be considered abuse of the market and the obligations of market participants
with a view to preventing and otkrivanja.64
Capital Market Act also prescribes the offenses relating to market abuse (part of the
seventh, widgets 568th-582.65).How judgment Maresti ESLJP66 impose
termination of running aggregation misdemeanor and criminal procedure and
requires demarcation and offenders for the same injury, and this is exactly working
group to amend the Criminal Code and makes taking care violations and criminal
offenses in the field of capital market do not match. Recognizing Maresti judgment,
the proposal of the Working Group that the offenses stipulated in the Law on crimes
against the capital market partially incorporate the new head of offenses against the
economy and partly to the Capital Market Law as a misdemeanor. At the same time,
it will be necessary to align the prescribed offenses against the law of capital
markets with new offenses. In particular we believe that you should consider
deleting or changing the provisions of Article 579th points 7th and 8 relating to the
responsibility of Physico person for theses offenses related to the abuse of the
market and, consequently, points 4, 8 and 9 Article 579th relating to the
responsibility of Physico persons for offenses relating to market abuse.
Accordingly, a new draft of offenses against the capital market which would be an
integral part of the head of offenses against the economy as follows:
Abuse of privileged information
(1) Who disposal of privileged information:
First for their own or on behalf of others, directly or indirectly, acquire or dispose of
/ dispose fi nancial instrument to which the information relates,
Second discloses, communicates, delivers or otherwise makes available to the
privileged information to another person,
3rd recommendation of another person or the states that acquire or dispose of fi
nancial instrument to which the information relates,
shall be punished by imprisonment of up to three years.
(2) If the offense referred to in paragraph 1 committed by a person who is
possessed privileged information on the basis of membership in a management or
supervisory bodies of the issuer, the issuer of the share capital, access to
information through the performance of their work or duties
shall be punished by imprisonment of six months to five years.
(3) If the offense referred to in paragraph 1 this article has resulted in or caused to
another substantial property damage, the perpetrator shall be punished by
imprisonment of six months to five years.
(4) If the offense referred to in paragraph 2 this article has resulted in or caused to
another substantial property damage, the perpetrator shall be punished by
imprisonment of one to eight years.
Misuse of capital market
(1) Whoever, contrary to regulations of the Capital Markets
First conducts a transaction or order to trade which can give false or misleading
messages about the supply, demand or price of fi nancial instruments, and acting in
cooperation with one or more personal holding cost fi cial instrument one or more
of the abnormal or artificial level,
Second when concluding a transaction or giving orders to trading procedures used fi
racism or other forms of deception or fraud,
3rd disseminates information through the media, the internet or any other means /
agent who provides or is likely to give, false or misleading signals as to fi nancial
instruments, including the dissemination of rumors and false or misleading news,
where the person who made the dissemination knew, or should have know that the
information was false or misleading,
shall be punished by imprisonment of up to three years.
(2) If the actions in paragraph 1 this Article, the perpetrator considerable material
gain or has caused substantial property damage, shall be punished by imprisonment
of one to five years.
As can be seen from the proposal, the current offense use, disclosure and
recommending inside information would be retained as an offense, with certain
modifications, along with the criminal offense of market manipulation, while
offenses Unauthorized investment services and unauthorized revelaing jobs tied
agent became violations . Was proposed is not inconsistent with Directive
2003/6/EC. Specifically, Article 14 Directive requires the establishment of effi cient
system for sanctioning violations of the rules of conduct on the capital markets, but
does not require that all violations of laws against criminal responsibility of the
perpetrators.
Criminal offense the use, disclosure and recommending inside information, 67
known as insider trading, has been passed in accordance with Directive 2003/6 / EC
following the Austrian model rjesenja.68 Working Group's proposal to amend the
Criminal Code that the work of de lege reads misuse of inside information, but While
maintaining the three possible types of actions called. primary and secondary
insideri69 be committed, and that the use, disclosure and recommending inside
information. The perpetrator of this crime can only be an insider or a person who
possesses inside information (Article 456, paragraph 2 CMA). Specifically, Articles
456 and 457 CMA also applies to any person who possesses inside information and
who knows, or should know that it is inside information (secondary insiders), and
not about people who came to privileged information, based on membership in a
management or supervisory bodies of the issuer , the share capital of the issuer,
access to information through the performance of their work or duties (primary
insiders). According to the proposal of the Working Group, the property is a
qualified primary insiders katorna circumstance, as in the past, but in the draft
paragraph 2 omitted people who learned the inside information on the basis of the
offense, which is strictly punished in force.
To be considered privileged information, that is conducive for the abuse, it is
necessary to include the following elements: it must be precise nature, should not be
publicly available, and must be directly or indirectly related to the issuer's finan cial
instrument or the fi nancial instrument and must be likely to have a significant
impact on the prices of these fi nancial instruments or related derivative fi nancial
instruments when he was publicly dostupna.70 It is likely that such a significant
impact exists if a reasonable investor would be likely to use such information as part
of the basis of his investment decisions.
In the draft of the legal description of the offense of abuse of privileged information
has been omitted and its subjective significance, which is the current solution or not
the market is that the perpetrator acts with an aim other fi a physical person or legal
entity acquiring unlawful material gain or to a physical or other fi legal person
causes damage. The directive 2003/6/EC contains no specific goal, and there would,
in the opinion of the Working Group to amend the Criminal Code, a new proposal for
legislation facilitated the process of proof, while the expansion of liability.
At the same time, the proposal contains a new paragraph (paragraph 4) which
prescribes imprisonment 1:00 to 8:00 years if the treatment insiders substantial
financial gain or other caused substantial property damage.
As before, the crime of abuse of privileged information does not apply to
transactions conducted in the discharge of obligations of the acquisition or disposal
fi nancial instruments where that obligation results from an agreement concluded
before the person got privileged informaciju.71 Also, market abuse will not be
Programs deemed purchase of its own shares and stabilization fi nancial
instruments, under the conditions stipulated by special regulations adopted by the
Agency, the programs and the purchase of its own shares stabilize fi nancial
instruments in accordance with Commission Regulation EC No. 2273/2003.72
It is important to note that the concept of abuse trzista73 applies not only to the
current offense of using, and recommending disclosure of inside information, but
also to the offense of market manipulation (Article 4 of the Offences against the
capital markets). Also draw attention to the name of the new draft criminal
diversion of the capital market, which should de lege replace the offense of market
manipulation may not be the best solution given that the market abuse kapitala74
consolidates and use, disclosure and recommending inside information and market
manipulation.
The current paragraph 5 Article 3 Of the Offences against the capital market
prescribes punishment for attempted primary and secondary insiders when it
comes to privileged information available for the acquisition or disposal fi cial
instruments to which that information relates, for their own account or the account
of a third party, either directly or indirectly. Therefore, the attempt is not related to
the detection or recommend, but only for the use of insider information. The new
draft does not contain a number of provisions of the criminality of attempts,
although the punishment for attempted primary insiders continues to be possible
because it is slated to five years imprisonment, or it will be possible for secondary
insiders if the intention is to obtain substantial financial gain or to cause substantial
property damage . However, unlike the current provision, the attempt will be
punished not only in the case of using privileged information, but also for detecting
or recommend privileged information. Basis for punishment only attempt to use
privileged information, a solution de lege lata, is based on Article 456 Paragraph
1 ZTK.75
For other key crime against capital market, market manipulation (Article 4 of the
Offences against the capital markets), the Task Force considered changing his name
to misuse capital markets. But as we have already pointed out, it must still discuss
whether the new name be the final draft of the working group because of possible
confusion that the new name could cause the significance of the concept of market
manipulation. As the previous article use, revelaing and recommending inside
information and insider trading, this article is taken from of the Offences against the
capital market (Art. 4) and in accordance with Directive preureðen 2003/06/EZ
Articles 2 to 4 Solution de lega lata is based on the Slovenian modelu.76
As with the regulation of the offense of abuse of privileged information in the
proposal legal description omitted the subjective element of the crime, and did not
require that the perpetrator acts with an aim of acquiring unlawful or other material
benefit. Also, Directive 2003/6/EC does not contain a specific goal, and there would,
in the opinion of the Working Group, the new legislation proposal would ease the
process of proof, whilst extending liability.
As for the actions referred to in paragraph 1 draft proposal, they are, as usual, based
on conduct that is covered by the concept of market manipulation in Article
466 CMA and based on the provisions of Directive 2003/6/EC, (Article 1, Item 2.77),
but with some updated conceptual solutions that are currently in force. The working
group is in his description of the modalities of actions directly using terms from the
Directive.
As far as the punishment for the attempt, it is scheduled if there is an intention to
obtain substantial financial gain or to cause significant property damage, and the
punishment for attempted commission of the underlying offense under paragraph
1 no longer envision.
That it is not always easy to demarcate crimes of market manipulation and using
privileged information, will be presented on the example of the German court
prakse78 that affects punish conduct that is considered scalpingom.79 The district
court held that the word on the primary insider and convicted perpetrators due to
the use of confidential information, while the German Federal Court, in our view
correctly, opted for the offense of manipulating trzistem.80 SO, a journalist
specializing in commercial law issues, he was editor of one trading expert edition
and had a great reputation in public, among other things because of the frequent
appearances on television.He was an advisor to two funds for operations with
stakeholders, but he founded his own one such fund, which is - mostly borrowed
money - has acquired the shares. O. was recommended two funds of which he was a
consultant to buy shares of its stock, as they did. This has led to a rise in share prices
of the fund and O. O. them afterwards sold profitably - just over two weeks in
October 2000. year saw a gain of 15,000 euros.
With regard to criminal offenses under Articles 5 and 6 Of the Offences against the
capital market, unauthorized provision of investment services and performing
unauthorized tied agent, the Task Force believes that it should be punished as
specified prekrsaji.81 No solution could come into question if it is set as the
continuity problem.Specifically, the entry into force of the capital markets ceased
Securities Act, 82 which is in the Articles of 149th to 154th prescribing offenses
against market kapitala.83 As the criminal offense of Illicit trade in securities
(Article 154) of the Securities Act transferred to article 5 Of the Offences against the
capital market, the working group must find a solution for the interim
period. However, if the crime alleged decision yet and de lege punished as such, it
requires a fundamental change and is considering the sanctions that are currently
foreclosed, questionable whether it would be necessary to punish and the attempt of
the criminal offense and it would be useful to attempt to punish if the perpetrator
had the intent to obtain a substantial gain. Specifically, de lege lata, for Unauthorized
fi nancial services shall be one that contrary to the provisions of the Capital Market
unauthorized provides investment services for the purpose of acquiring financial
gain. Shall be the one who organizes a group of persons for unauthorized provision
of investment services contrary to the provisions of the CMA in order to acquire
financial gain. As seen in the previous two draft acts, abuse of privileged information
and misuse of capital market, omitted subjective element of an offense, that is not
the market that the perpetrator acts with an aim of acquiring unlawful or other
material benefit, if the legislature decides to keep it, and continues as criminal, it is
necessary here to give up his subjective characteristics.Especially prescribing
punishment for organizing a group of people doing unauthorized provision of
investment services is unnecessary if you take into account the intention of the
Working Group to amend the Criminal Code to the regulations in a separate article
crackdown for organizing a group to commit the crime.
The offense conduct unauthorized activities tied agent who makes the
contravention of the provisions of the Capital Markets unauthorized performs tied
agent in order to obtain financial gain. Related representative is a person appointed
for the purpose of investment firms that, under the full and unconditional
responsibility of an investment firm that acts on behalf of performing the duties
prescribed by ZTK zastupnika.84 related to the investment firm may ovlastiti85 tied
agent on its behalf to perform promotional activities for the investment societies,
investment firms offering services, receive and transmit orders from clients or
potential clients, the placement of fi nancial instruments and advice in connection
with the fi nancial instruments and services that investment firms nudi.86 tied agent
shall not dispose of money and / or fi nancial instruments client or potential client
the investment firm and can only perform tasks on behalf of an investment firm. As
this is a new offense, or a crime that did not exist in securities law, we believe that
the issue of continuity would not be a problem if this crime becomes an offense de
lege.
In any case, if we adopt the opinion of the Working Group that the alleged acts of the
last two de lege punished as a misdemeanor, but if one of them is defined as a crime
in the new heads have punished offenses against the economy, it is the
misdemeanor provisions of the market abolish capital punishment for their
transgressions, which is contrary to the judgment Maresti, solution de lege lata.87
Sidebar
Summary
ECONOMIC Offences CRIMINAL IN THE NEW CRIMINAL CODE
Economic Criminal Offences regulated by the Croatian Criminal Code require
thorough reconstruction. Descriptions of some economic Criminal Offences in the
Criminal Code are entirely outdated and do not Correspond to the present time. The
need to modernise this part of criminal law is near the Croatia's forthcoming
accession to the EU, Which calls for the harmonization of national criminal law
systems, especially in the field of economic criminal law, by Ensuring the protection
of market competition from prohibited agreements (cartels), and by Punishing:
Committed fraud to the detriment of the EU budget, offering bribes in economic
operations, insider trading, market manipulation, etc.. Something has already been
done in this field (for example, the inclusion of the Provisions on fraud to the
detriment of the EU in the CC, the adoption of a special law regulating Criminal
Offences Committed Against Capital Markets), but this is still not enough . The
Working Group of the Ministry of Justice, Which has been preparing the Draft New
Criminal Code has discussed on several occasions how to regulate economic
Criminal Offences. A consensus has been reached that these Offences should no
longer be scattered in two chapters, as is the case in the present Criminal Code
(Criminal Offences Against the Safety of Payment Transactions and Criminal
Offences against Official Duty), but they should be brought together in those
separate chapter Entitled Criminal Offences Against the Economy. The paper
presents the most important Which changes have been proposed, and Which
Primarily relate to the criminal offense of abuse of trust in business operations and
Subvention abusive, and customs and tax evasion.The paper also outlines changes to
bankruptcy Criminal Offences, Criminal Offences against market competition,
money laundering and concealment. The regulation of Criminal Offences Against
Capital Markets in the Criminal Code is also presented.
Footnote
1 tells of the "Europeanized national criminal law" (Sieber, Die Zukunft des
Europäischen Strafrechts, ZStW 2009, p. 6).
2 provides a comprehensive comparative review Foffani Die Untreue them
rechtsvergleichenden Überblick, in: Festschrift für Klaus Tiedemann, 2008, p. 767
and further.
3, we'll accept and merge the two forms of abuse of trust property in a unique pen
neno work (as quoted in foreign systems), but if you decide to separate the head of
offenses against the economy, they must be still disengaged.
4 for the German criminal law v. Schönke / Schröder, Strafgesetzbuch, Comment,
27 Aufl., 2006, § 266, marginal no. 49, p. 2331, for Switzerland Stefan Trechsel et al.
Schweizerisches Strafgesetzbuch, Praxiskommentar, 2008, cl.158, no boundary. 14,
p. 749, for the Austrian Forreger - Fabrizy, Strafgesetzbuch, 1999, § 153 marginal
no. 7, p.469th
5 critically about these practices Zlatarić Criminal Code in its practical application,
vol. II, 1958, p. 268th
Bacic 6 / Pavlovic, Commentary of the Criminal Code, 2004, p. 1005th
7 Horvatic, New Croatian Criminal Law, 1997, p. 531st
8 So with German jurisprudence creation of black funds ("schwarze Kassen")
constitute a criminal offense "Untreue", see decision of the German Federal Court of
Justice in the so. case of Siemens / ENEL, Neue Juristische Wochenschrift, 2009,
p. 89th
9 "Only tax evasion (tax time) may not in any circumstances be a criminal offense"
(Tiedemann, Wirtschaftsstrafrecht, Besonderer Teil, 2008, p. 49).
10 Schönke / Schröder (note 4), § 2, no boundary. 25, p. 64th
11 abbreviation French title: La Convention Relative à la protection des intérêts fi
nanciers des Communautés européennes.
12 Croatian translation published by the Croatian Association of European Criminal
Law 2003rd called Corpus Juris 2000th
13 A similar technique was used by the German Criminal Code § 264 governing the
subsidy fraud.
14 According to contemporary understanding, "particularly bonded criminal law no
longer exists" (Tiedemann, p. 9, p. 45).
15 Thus, the German Criminal Code § 283c regulating the preference of creditors.
16 Official Gazette 5/08. The Convention entered into force on 1 May 2008.
17 See Draft Law on the Ratification of the Council of Europe Convention on
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the
Financing of Terrorism fi, p. 3rd
18 Official Gazette 152/08.
19 Official Gazette 87/09.
20 For the definition of the concept of money laundering and see Directive
2005/60/EC on the prevention of finan cial system for the purpose of money
laundering and terrorist fi nancing.
21 Article 2 Law. See also article Cindori, S.: System of Prevention of Money
Laundering, Financial Theory and Practice 31 (1) p. 55-72 (2007).
22 GARAČIĆ, A., Penal Code in the case law, special part, second, revised and
expanded edition, Organizer, Zagreb, 2009., P. 615th
23 Novoselec, P., Introduction to Economic Criminal Law, Faculty of Law, University
of Zagreb, 2009., P. 186th
24 See Novoselec P., op. cit. 192nd "The U.S. Office for Money Laundering Prevention
(FinCEN) has described the process of money laundering through three stages:
placement, processing and integration. Stage in depositing funds from criminal
activities are in the fi nancial system or invest in real estate and movables. Interject
main objective Money flows in fi nancial or ga switch outside the country., the
launderers exit their earnings, which is the phase with respect to the detection of
dirty money is crucial. " (Maros, I., 1999. Role and powers of the Anti-Money
Laundering, Police and Security (3-4), 241-242, cited by: Cindori, page 56.)
Cindori 25, p. 56th
26 The concept of property under Article 1 B. The Council of Europe covers all types
of assets, tangible and nematerijanu, movable and immovable, and legal documents
or instruments evidencing title to or interest in such property.
27 Law on the Ratification of United Nations organization is of the Convention
against Transnational Organized Crime, the Protocol to Prevent, Suppress and
Punish Trafficking in Persons, especially women and children, and Prokol against
the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organized Crime, the National Gazette 14/02.
28 The concept of property, according to Article 2 d of the UN Convention, includes
property of every kind, regardless of whether the material or non-material, movable
or immovable, or if the legal documents that prove ownership or any rights over
such property.
29 Knowledge, intent or purpose, as an element of the offense, may be inferred from
objective factual circumstances (Article 6, paragraph 2 of the Convention tf).
30 In accordance with the basic tenets of the legal system of the State Party (Article
6, paragraph 1.b of the Convention).
31 More of the circle of crime from which must come to see the dirty money:
Novoselec, P., Introduction to Economic Criminal Law, Faculty of Law, University of
Zagreb, 2009., P. 193rd to 194th
32 In accordance with the constitutional principles of individual countries and the
fundamental principles of its legal system, cl. 9th st.1.b. Council of Europe
Convention.
33 Each Party may adopt such legislative and other measures as may be necessary
to establish as criminal offenses under its domestic law all or some of the acts
referred to in paragraph 1 Article 9 Convention when the offender is suspected that
the property was the proceeds of crime and / or when he had to assume that the
property is proceeds of crime (Art. 9 § 3 of the Convention).
34 The draft refers to the proposal from the Task Force, ending, November
2010. years and still not be considered a final draft of the proposal.
35 See Table legal opinion of the Supreme Court created by Sanja Nola, in article
Maršavelski, A.: fixed or unspecified value in criminal law, Croatian Annual of
Criminal Law and Practice (Zagreb), Vol 16, No. 1/2009, pp. . 117-146.
36 The economic benefits can consist of any property, as defined in Article 1, point
B. Convention.
37 See, also cited the Supreme Court of the Supreme Court, I Kz-137/01.
38 The Supreme Court, I Kz-137/01, HLJKPP 1/2001, p. 672nd
39 See Novoselec, P., (note 31), p. 192nd
40 See Article 6 Paragraph 2 point of f. UN Convention.
41 See more Novoselec, P., op., P. 195th to 196th
42 Absicht generally means objective as subjective elements of the offense, and
matches the intent in terms of the former Criminal Code of the Republic of
Croatia. This term should be distinguished from the term which is identical Vorsatz
today's notion of intentions, and fits the erstwhile concept intent.
43 See detailed perspective of Swiss law Gukelberger, B., Die Absichtsdelikte des
Schweizerischen Strafgesetzbuches, Verlag Herbert Lang & Cie. AG Bern, 1968.,
From German Gehrig, K., Der der Absichtsbegriff Straftatbeständen des besonderen
Teils des StGB, Duncker & Humblot, Berlin, 1986.
44 According to the novel of the Criminal Code of Croatia of 29 March 1996. it was
enough to laundering money obtained an "unlawful act."
45 See Article 9 Paragraph 4 Council of Europe Convention.
46 See upravnokaznene extent of the Law on Protection of Competition (Official
Gazette 79/2009), in particular Article 61 and 62 The law came into force on
1 October 2010.
47 Judgment of 23 7th 2009th, Application no. 55759/07, to see the complete
judgment http://sljeme. usud.hr / doom / prakES.nsf /
48 Special to bringing criminal proceedings for offenses committed outside Croatian
territory.
49 Failing to clean the property crimes, ie legal property which infringe the property,
Novoselec, P., op., P. 192nd
50 The notion enshrined in the money, as it is stated in the decision of Supreme
Court, Kz-680/75 of 31 July 1975., by: GARAČIĆ, A., op., p. 504th
51 Thus, Article 160 Paragraph 1 second point Swiss Penal Code, and Art. Three
hundred and first Croatian Criminal Code in force (to help the perpetrator after the
commission of the offense).
52 working groups during the drafting of this proposal, guided by § 260 German
Criminal Code and Article 160 § 2Swiss Penal Code.
53 Committee of Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism, Council of Europe,
http://www.coe.int/t/dghl/monitoring/moneyval/
54 Official Gazette 152/08. The law came into force on 1 January 2009.
55 See Lowenfels, LD, Bromberg, AR, Securities Market Manipulations: An
examination and analysis of domination ans control, fortrunning and parking,
Albany Law Review, Volume 55, Number 2, 1991., P. 295th
56 Financial instruments are transferable securities, money market instruments,
units in collective investment undertakings, derivatives that include: options
(options), futures (futures), pronouns (swaps), forward rate agreements (forward
rate agreements), etc . according to Article 3 CMA.
57 Directive 2003/6/EC of the European Parliament and of the Council of 28
January 2003 on insider dealing and market manipulation (market abuse),
http://eur-lex.europa.eu
58 "The new defi nition inside information (previously of material fact) and market
abuse (previous market manipulation). Shall not be considered market abuse
programs purchase of its own shares and the stabilization of fi nancial instruments,
under the conditions stipulated by special regulations that will bring the Agency in
accordance with a solution of Commission Regulation (EC) No. 2273/2003. For
issuers to which the provisions of this part of the Act is the obligation to keep a list
of people who have access to inside information. As one of the conditions under
which it will be deemed to have been an abuse of market introduces accepted
market practices as practices that are reasonably expected in one or more of the fi
nancial markets and are accepted by the Agency in accordance with the prescribed
procedure, which will be detailed to prescribe special regulations ... " Draft bill on
the capital market with the final bill, Ministry of Finance, Finance, Croatia, June 2008.
59 Reducing malpractice is one of the main objectives of the regulation of capital
markets in the U.S. yet since 1934.year, according to the Securities Exchange Act
zakonopisaca (USA), S. Rep.. No. 1455, 73d Cong., 2d Sess. 30 (1934), reprinted din 5
Legislative history oft he Securities Act of 1933 and the Securities Exchange Act of
1934, Item 20, at 30 (1973), cited by: Lowenfels, Bromberg and LD, AR, p. 294th
60 The Committee of European Securities Regulators.
61 See The Committee of European Securities Regulators, Market Abuse Directive,
Level 3 - fi rst set of CESR guidance and information on the common operation oft he
Directive, Ref: CESR/04-505b II Level 3 - second set of CESR guidance and
information on the common operation of the Directive to the market, Ref: CESR/06562b.
62 Ibid, First set of guidlines, p. 3rd
63 Official Gazette no. 5/09.
64 mentioned the obligations laid down in Articles 468th and 469th CMA.
Articles 65 568th to 582nd regulate theses and other violations of investment firms
and credit institutions and fund management investment fund with a public offering,
violation of any other person, violation of exchange, minor and violations of the
issuer whose securities are listed on the Regulated market, simple offense of any
other person of the issuer whose securities are listed on the Regulated market,
minor and offenses relating to market abuse, violation of Physico people in
connection with market abuse and violations of the Central Depositary.
66 Judgment of 23 7th 2009th, Application no. 55759/07, to see the complete
judgment http://sljeme. usud.hr / doom / prakES.nsf /
67 This offense is linked to Article 456, 457 and 458 Capital Market Act.
68 See First set of guidlines, p. 8th-21st
69 More on the concepts of primary and secondary insider, see: Novoselec, P.,
footnote 31, p. 210th
70 Article 455 CMA.
71 According to Article 456 Paragraph 4 CMA.
72 Article 454 paragraphs 1 and 2 CMA.
73 CMA Part IV, entitled Abuse, consists of head I.-V. Chapter II. governing privileged
information, and Title III.Market manipulation. Also, see the Offences against market
abuse, the articles of 577th to 579th CMA.
74 Market abuse consists of insider dealing and market manipulation. The objective
of legislation against insider dealing is the same as that of legislation against market
manipulation ... (Defi nition, t. 12th, Directive 2003/6/EC).
75 See explanation obredbi of the Offences Against the Capital Market, p. 6th
76 See First set of guidlines, p. 416th to 426th
77 "Market manipulation" Shall mean:
(A) transactions or orders to trade:
- Which give, or are likely to give, false or misleading signals as to the supply of,
demand for or price of fi nancial instruments, or
- Which secure, by a person, or persons acting in collaboration, the price of one or
several fi nancial instruments at an abnormal or Artif cial level, unless the person
who entered into the transactions or currently being issued the orders to trade
establishes that his reasons for so doing are legitimate and that these transactions
or orders to trade conform to accepted market practices on the regulated market
concerned;
(B) transactions or orders to trade Which employ fi ctitious devices or any other
form of deception or contrivance;
(C) dissemination of information through the media, including the Internet, or by
any other means, Which gives, or is likely to give, false or misleading signals as to fi
nancial instruments, including the dissemination of Rumours and false or
misleading news, where the person who made the dissemination knew, or it oughta
have known, that the information was false or misleading. In respect of journalists
when they act in their professional capacity Such dissemination of information is to
be assessed, without prejudice to Article 11, taking into account the rules governing
their profession, unless Those persons derive, directly or indirectly, an advantage or
profi ts from the dissemination of the information in question.
Entscheidungen 78, Band 48, p. 373, quoted by: Novoselec, P. (note 31), p. 216th to
217th
79 Scalping includes the acquisition of shares in order to buy their recommendation
to their increased cost and to make them the perpetrator (scalper) then sold at
higher price and made a profit. "It is a conflict of interest on the takvg perpetrators
because the public does not know that he recommends selling the shares which he
himself realized profits" (Noveselec, P., op., P. 217). You can see more about the
types of offenses called insider trading, scalping, frontrunnig and parking in the
articles: Lowenfels, LD, Bromberg, AR, op.cit., P. 293rd to 365th, de Vauplane,
Hubert; Simart, Odile, Concept of Securities Manipulation and Its Foundations in
France and the USA, The Brooklyn Journal of International Law, Vol 23, Issue 1
(1997), p. 203rd to 240th, and Ruggiero, Eugenio, Regulation of Insider Trading in
Italy, The Brooklyn Journal of International Law, Vol 22, Issue 1 (1996), p. 157th to
202nd
80 Article 20a, paragraph 1 t. Second German Act on Trading in Securities.
81 This mindset and adoption requires the adoption of amendments to the Capital
Market Law.
82 Official Gazette 84/02, 138/06.
83 unauthorized use and disclosure of inside information (art. 149), manipulating
prices and spreading false information (Art. 150), the reporting of false information
in the prospectus and its distribution inadmissible (Art. 151), improper listing of
securities (Art. 152), concealment of property (Article 153), illegal trading of
securities (Art. 154).
84 Article 3 Paragraph 1 item 18 CMA.
85 When an investment firm authorized tied agent, it is fully and unconditionally
responsible for all acts or omissions of a tied agent when acting on behalf of an
investment company (Article 95 of the CMA).
86 Article 93 Paragraph 1 CMA.
87 See in particular Article 568th to 571st CMA.
AuthorAffiliation
Dr.. Peter Novoselec *
Sunny Roksandiş Vidlicka, Dipl. iur. **
* PhD. Peter Novoselec order. Professor of Law, University of Zagreb, retired
(Chapter 1 to 6)
Suncana ** Roksandiş Vidlicka, Dipl. iur., Assistant Professor, Department of
Criminal Justice School of Law, University of Zagreb (Chapter 7 and 8)
Copyright Croatian Association for Criminal Sciences 2010