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
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: This article analyses the amendment to Article 296 § 4a of the Penal Code, which broadenedthe circle of entities that may file a request for prosecution of the criminal offence of punishablemismanagement without damage. Prior to the amendment, only the aggrieved party hadsuch a right, but now it is also available to a partner, shareholder, or stockholder of theaggrieved company or a member of the aggrieved cooperative. The purpose of this analysisis to assess whether this amendment was actually necessary and whether its introductionaligns with the principle of subsidiarity in criminal law. In the author’s opinion, there isinsufficient justification for this amendment, and its introduction appears to be the resultof a faulty identification of the reasons for the rare application of the provision sanctioningthe criminal offence of mismanagement without damage. The legislator has identified thelimited circle of persons who may file a request for prosecution as the primary reason forits lack of practical application. However, in fact, the lack of application of this provisionlies in its construction, which significantly limits the range of factual circumstances that canbe qualified under its statutory elements. Furthermore, the introduced solution does notseem reconcilable with the principle of subsidiarity in criminal law, as it constitutes excessiveinterference of criminal law in corporate relations, increasing the risk of abuse of this institution.

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