Procedural and methodological aspects regarding the investigation of the fraudulent bankruptcy infraction

• Author: Mihai Adrian Hotca
• Position: "Nicolae Titulescu" University from Bucharest
• Pages: 14-22

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§1 The evidence administration

Business is not always run by honest people, but mostly by dishonest people that make use of the law in order to get rich very fast. One of the infractions encountered in the practices of the penal juridical authorities is the fraudulent bankruptcy. The investigation of the fraudulent bankruptcy infraction implies a corresponding knowledge of the penal procedural norms. Just as with most of the infractions in the business domain, the fraudulent bankruptcy infractions presents a specific feature due to the way they are committed, extremely elaborated and sophisticated, based generally on a high technique and on knowing the weaknesses in the business law.

The revealing of the fraudulent bankruptcy infractions, the collection and administration of the evidences, the doers' identification and catching, the taking of the procedural measures and finally their holding responsible represent an activity that has to be carried on by observing the norms of the penal procedural law.

Establishing the existence of the penal conflict relation resulting from the committing of the fraudulent bankruptcy infraction gets some features determined by the way and the modalities used to commit this infraction. In many cases, the doers draw up false documents whose character is very difficult to be verified. Some other times, they conclude documents that are apparently legal, but that hide transactions defrauding the creditors. There are also cases when there are elements of foreign origin (foreign doers or documents made abroad). But, the cause that determines the greatest difficulties in the practice of the juridical authorities involved in the investigation of the infractions in the business domain is the existence of some huge quantities of accounting evidences and of some other documents that were drawn up for the purpose of "covering up" the committed infractions.

The specialty authors pay more and more attention to the methodological elements regarding the criminalistic investigation of the infractions in the

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business domain¹ and it is talking about the "banditry of the business"². In the criminality theory, it is mentioned the possibility specific to the business domain that their punishable deeds are masked through complain. In this way it appears problems related to the precursory deeds that have the purpose of verifying the data held by the juridical authorities or of completing them in order to draw the conclusions corresponding to the beginning or ceasing of the penal pursuit. In many cases, it is needed accounting, graphic, criminaliastic expertise that implies not only very well- trained human resources, but also very high expenses. A number of cases are notorious for their penal records that are based on tens and even thousands of volumes.

In order to avoid the beginning of the penal pursuit without the existence of enough elements that would reasonably lead to the conclusion that an infraction was committed and that the doer can be hold responsible, in doctrine, it was righteously suggested by the law the granting of some greater possibilities to the judicial authorities with regard to the drawing up of the documents precursory to the penal pursuit phase³.

One of the principles that especially has to be observed in the case of the infractions in the business domain is the principle of the efficiency, well- known with the bankruptcy infraction, in art. 148 of Law no. 85/2006. The fame in many cases is essential for the successful investigation of the infractions in the business domain, because the most important evidences, the debtors' documents, can be easily destroyed or hidden in order not to be found by the penal pursuit authorities.

The administration of the evidences in the domain of the business criminology seldom faces difficulties caused by: the involvement of some covering persons (influent persons from the political, economic or administrative point of view); trade agents that are in connection with the doers do not cooperate with the penal pursuit authorities for fear that their own illegalities might be revealed or because of the economic dependency; the complexity of the infractions (the large volume of documents, the large number of the participants, the existence of a rigorous organization etc.). After informing the penal pursuit authorities and carrying out the precursory deeds necessary for the investigation of the infractions in the business domain, if it is drawn the conclusion that an infraction was committed, the competent authorities will go forward wit the procedural activity and will carry out other specific activities.

Next, it is noticed that the penal pursuit authorities need data or information that could help to solve the cases that have been reported. The data are given by the evidences. The evidences in the penal trial are factual elements with

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informative relevance on the penal aspects of a penal trial⁴. According to art 64 of the Code of penal procedure, the evidence means through which it is found the factual elements that can serve as evidence are: the defendant's or the accused's statements, the injured party's, the plaintiff's statements and those of the person's civilly responsible, the witnesses' statements, the documents, the audio and video records, photographs, material evidence means, technical-scientific findings, the forensic findings and the expertise. Other evidence means or evidences illegally obtained have no relevance.

For the causes referring to the investigation of the fraudulent bankruptcy infractions, the expertise and the documents are the most important of the evidence means limitative stipulated by art 64 of the Code of penal procedure. Although these are encountered in most penal cases, we have in view the injured party' s, the plaintiff' s statements, those of the person's civilly responsible and the defendant' s or accused' s statements; these evidences do not usually have an important part. The defendant's or the accused's...