The Analysis of the Capital Market Offences

• Author: Manea, L.
• Position: Law Department, Transilvania University of Brasov
• Pages: 141-148

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013

THE ANALYSIS OF THE CAPITAL

MARKET OFFENCES

Laura MANEA1

Abstract: Law no.297/2004 regarding the Capital market is a non-criminal

law which regulates a special area – the Capital market and its financial

instruments – but in order to ensure the unity in settling the aspects related to

the Capital market, it has been necessary to include criminal provisions.

Thus, the lawmaker used a distinctive legislative technique from the criminal

rules, by comprising some divided provisions, which fill out with the content

of other provisions from the law text expressly mentioned. This legislative

technique has been criticized by the doctrine, being considered to give raise

to confusions. Still, in the content of the indictment provisions comprised in

title X of the law, we can identify the common constituent elements of the

offences regarding the Capital market.

Key words: Capital market, offence, legal object, material element,

securities.

1 Law Department, Transilvania University of Braşov.

1. Introduction

Law no.297/2004 regarding the Capital

market is a non-criminal law, which

regulates the establishment and functioning

of the markets in financial instruments, the

institutions and operations specific to the

activity of mobilizing financial assets.

Given the high volume of transactions, but

also the frauds committed on the Capital

market in the last years, the lawmaker has

acknowledged the need of criminal

protection of the Capital market, even

through the common Criminal Law, the

protection of these social values is ensured,

a reason why he included in Law

no.297/2004 criminal provisions, comprised

in title X, also named „Responsibilities and

sanctions” – Article 271 – Article 279.

These criminal dispositions in addition to

the liability offence aim at criminally

sanctioning some deeds which are

considered as representing an increased

social hazard by violation of the legal

relationships between the Capital market

and the public trust in the Capital market

and in the economic system in general.

Related to Article 297 in Law no.

297/2004, which comprises the criminal

provisions of the law, we must say that it is

the standard criminal framework, an

incomplete framework with internal

difference to Article 237, paragraph (3) and

Articles 245-248. Thus, in order to establish

the legal content of the offence charged, the

text of Article 279, paragraph (1) in Law

297/2004 refers to mandatory regulations,

contained in rules explicitly stated, among

which the obligation of adopting a certain

attitude through performing an action or

refraining from doing something that might

impede the protected relationship.