PODMIOTY UPRAWNIONE DO ZŁOŻENIA WNIOSKU O ŚCIGANIE PRZESTĘPSTWA KARALNEJ NIEGOSPODARNOŚCI BEZSZKODOWEJ – OCENA NOWELIZACJI ART. 296 § 4A K.K.
THE GROUP OF ENTITIES ENTITLED TO FILE A REQUEST FOR PROSECUTION OF THE CRIMINAL OFFENCE OF PUNISHABLE MISMANAGEMENT WITHOUT DAMAGE – ASSESSMENT OF THE AMENDMENT TO ARTICLE 296 § 4A OF THE PENAL CODE

Summary/Abstract: The article is an analysis of the amendment to article 296 § 4a of the penal code, as a resultof which the circle of entities that may file a motion for prosecution of the offence ofcriminal mismanagement without harm has been broadened. Prior to the amendment, onlythe wronged party had such a right; now it is also available to a partner, shareholder orstockholder of the wronged company or member of the wronged cooperative. The purposeof this analysis was to assess whether, in fact, this amendment was necessary and whetherits introduction complied with the principle of subsidiarity of criminal law. In the author’sopinion, there is no sufficient justification for this amendment and its introduction appears tobe the result of a faulty identification of the reasons for the rare application of the provisionsanctioning the offence of criminal harmless mismanagement, which the legislator identified inthe excessively limited circle of persons who may file a motion for prosecution of this offence.Meanwhile, in fact, the lack of practical application of this provision lies in its construction,which significantly limits the range of facts that we can fit into its elements. Moreover, theintroduced solution does not seem to be reconcilable with the principle of subsidiarity ofcriminal law, as it constitutes an excessive interference of criminal law in corporate relations,threatening the abuse of this institution..

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