engleski

CRIMINAL JUSTICE ASPECTS OF CAUSING FALSE BANKRUPTCY

Regulating of bankruptcy criminal offenses is based on a fact that there is a high dark number conditioned by structure of the very perpetrators. The bankruptcy criminal offenses are classic delicta propria and the perpetrators are either the responsible persons within a legal person or the debtors - individuals over which the bankruptcy proceedings may be instituted based on provisions of the Bankruptcy Act. However, in case of criminal offense of false bankruptcy the problem appears at the determining of a circle of persons being responsible for commitment of that offense, which is contributed to by the interpretation of a legal system for this criminal offense. The bankruptcy as a legally defined procedure that is conducted over the debtor's estate for the purpose of making a settlement to creditors indicates at the importance of the protection of creditors but also of adjudicated bankrupts as well as the protection of general public interests with the goal to prevent the commitment of bankruptcy criminal offenses. The aim of false bankruptcy regulating is to point out to the responsibility of persons which appear before and during the bankruptcy proceedings since the commitment of this offense requires a direct intention as a severe aspect of guilt. The determination of criminal responsibility of perpetrator is based, inter alia, on basic principles of obligatory commercial relations, principle of due care and diligence of a prudent businessman and principle of good faith. A specific feature of this criminal offense is that the causing of false bankruptcy is most often carried out over the corporate entities which were successfully running their business until the moment of committing the respective offense. The criminal offenses, committed in a privatisation process of public property, are committed very often but they are rarely prosecuted. For this reason the aim of this paper is to indicate at the importance of consistent implementation of legal provisions in the work of bankruptcy estate managers and registrars in bankruptcy, execution of the control of business activities of corporate entities and timely actions to be taken by the competent prosecutor's office in cases when the bankruptcy proceedings are suspended due to the lacking bankruptcy estate. Proving the direct intention of responsible persons is very difficult in practice, relativizing the determination of their criminal responsibility. With the aim of preventing the commitment of bankruptcy criminal offenses it is very important to have a concept of Actio Pauliana which is used for refuting the debtor's legal activities which impair the estate of the adjudicated bankrupt and violate the principle of equality of creditors.

criminal responsibility, false bankruptcy, Actio Pauliana, bankruptcy, bankruptcy criminal offenses.

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