Fraud Management in the Romanian Criminal Law. Direct Implications in Business Environment

• Author: Ioana Rusu
• Profession: Christian University 'Dimitrie Cantemir', Romania
• Pages: 105-120

Fraud Management in the Romanian Criminal Law.

Direct Implications in Business Environment

Assistant professor Ioana RUSU

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Abstract

In this paper we have investigated the fra udulent management offense, taking

into account the provisions of the new Criminal Code. In this review, we have insisted on

the constitutive content of the offense, the elements of differentiation between the rules in

force and those laid down in the Criminal Code of 1969, as well as the transitional situ-

ations. We have also highlighted the co ntinuation of the tradition of Romanian law, a

tradition which implies the incrimination of this fact starting with the adoption of the first

Romanian Criminal code of the modern period, namely the Criminal Code of 1864. We

have also insisted upon presenting the implications of this crime in the business environ-

ment, emphasizing the need to prevent and combat this crime more effectively, contrib-

uting to increasing mutual trust in the business environment and, implicitly, to increasing

confidence in the Romanian state institutions. The novelty elements are represented by

the examination carried out in accordance with the new law, as well as the presentation

of the judicial practice in the matter. The work is a small part of the criminal law course,

the special part to be published at the Universul Juridic Publishing House at the begin-

ning of next year. This paper may be useful to the business environment, law faculty stu-

dents, and practitioners in the field.

Keywords: Offense; preexisting elements; constitutive content

JEL Classification: K14

1. Introduction

One of the crimes encountered quite frequently in recent years in busi-

ness (but not limited to) is the offense of fraud management.

As regards its legal content (according to the provisions of Romanian

law, the fraudulent offense consists in the act of a natural or legal person who has

or must take care of the administration or preservation of goods, of causing dam-

age to another natural or legal person, with the occasion of the administration or

preservation of those goods.

If the deed is committed by the legal administrator, the liquidator of the

debtor's property or by a representative or prepaid of the debtor, the deed is con-

sidered to be more serious and is sanctioned accordingly.

Also, if the facts to which we have referred to above are committed in

order to gain a patrimonial benefit, they are considered to be more serious being

punished more harshly.

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Ioana Rusu - Christian University "Dimitrie Cantemir", Romania, oanarusu_86@yahoo.com

Diversity and Interdisciplinarity in Business Law 106

In accordance with the provisions of art. 117 par. (1) from G.E.O. no.

46/2013 regarding the financial crisis and the insolvency of the administrative-

territorial units

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, with the subsequent modifications and completions, the offense

of fraudulent management committed by the legal administrator, the chief author-

izing officer of the administrative-territorial units, as well as any representative

or submitted thereof is considered be more serious, being sanctioned accordingly.

With regard to this offense, the recent doctrine has argued that “the in-

crimination of the fraudulent act of deception is justified, as the author, through

its commission, violates the obligations incumbent upon him or under his as-

sumption regarding the administration or preservation of the good of another,

thereby causing patrimonial damage to the injured party.

In addition to material injury, the perpetrator also causes a moral lesion,

which consists in disregarding the confidence given by the injured party, abusing

his confidence.

For these reasons, fraud management, as a group classification, is part of

the category of offenses against patrimony, but it belongs to the subgroup of pat-

rimonial offenses committed by disregarding the trust granted and affecting those

patrimonial social relations, the formation of which is always based on trust”.

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2. The Criminal Code in force in relation to the previous law

The offense of fraud management was also laid down in the Criminal

Code of 1969, in a similar way in art. 214, between the two regulations being

both elements of resemblance and difference.

Thus, in the new law the expression in “bad faith” was dropped, this re-

quirement not being mentioned in the content of the norm of incrimination from

art. 242, par. (1) Criminal Code.

For the old law the reason for the existence of this requirement in the text

of art. 214, par. (1) Criminal Code of 1969, was to exclude fault as a form of guilt.

Since the new law has established the rule that the act committed by fault is an

offense only when the law expressly provides for it (article 16, par. (6), Thesis II,

Criminal Code), the mention of this phrase is not more justifiable.

In art. 242, par. (2) Criminal Code, the first aggravated method is foreseen and

may be retained in the situation in which the deed referred to in par. (1) is com-

mitted by some persons who have the capacity of judicial administrator, liquida-

tor of the debtor's property or representative or prepaid thereof; we note that there

was no such provision in the previous law, but this is still provided in art. 144 of

Law no. 85/2006.

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Published in the Official Monitor of Romania, Part I, no. 299 of 24.05.1999.

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Ilie Pascu, in George Antoniu, Tudorel Toader (coor.), George Antoniu, V ersavia Brutaru,

Constantin Duvac, Ion Ifrim, Daniela Iulia Lămășanu, Ilie Pascu, Marieta Safta, Constantin Sima,

Tudorel Toader, Ioana Vasiu, Explicațiile Noului Cod Penal, vol. III, Art. 188-256/Explinations of

the New Criminal Code, Vol III, Art 188-256, Ed. Universul Juridic, Bucharest, 2015, p. 513.