Economic Crimes in the New Criminal Law

Headnote

This paper presents the most important changes in economic crimes, which prepares the Ministry of Justice working group that prepared the draft of the new Criminal Code, which relate primarily to the criminal offense of abuse of trust in business operations, the criminal offense of fraud in business transactions and subsidy fraud, tax evasion and customs , then amendment insolvency offenses, offenses against the then market competition, changing money-laundering and concealment, and prescribe offenses against the capital market in the Criminal Code.

First WHY SHOULD remake of economic crime

It is not rare in the discussions on the reform of the Croatian criminal law has economic crimes stand out as those that require complete reconstruction. Current Croatian economic criminal law really lags behind its time. While we get the modern with the Companies Act, which is a reception of German commercial law, criminal law has not followed that path. Descriptions of some economic crimes in the Criminal Code are completely outdated. Some of them derive from the legal system based on social ownership and inappropriate to a new constitutional order of the Republic of Croatia, moreover, sometimes it comes to the so-called solutions. administrative socialism, such as the treatment of abuse of office (Article 337 of the CC), but also on some other economic offenses as criminal offenses against official duty, which dates from the period when the individuals in the economy is equated with official people. Abuse of authority in business activities from cl. 292nd CC - Yugoslav legislation introduced in the 1959th to combat "fraud useful" - still stubbornly persists, despite the difficulties imposed by both theory and practice.

The need for modernization of the criminal law has been related to the forthcoming Croatian accession to the European Union, which requires harmonization of national criminal justice systems, especially in the field of economic criminal law, and by providing competition of prohibited agreements (cartels), punishing fraud to the detriment of the EU budget , bribery in business transactions, insider trade and Fig.1 The explicit commitment to harmonize Croatian law with the EU has been ongoing since the enactment of the Stabilisation and Association Agreement between the European Communities and their Member States in 2001, according to which Croatia is obliged to harmonize their legislation with the acquis communautaire by 2011. year. In this regard has already done something (eg introduction into the Criminal Code provisions on fraud to the detriment of the EU), but still not enough.

Weaknesses of the provisions relating to economic crimes come to the fore in their application. Descriptions of the works it legally are naked, and some of them overlap (especially the abuse of power and authority under Art. 337 of the CC, and abuse of authority in business activities from cl. 292nd CC, of which more will be said later), which had no actual difficulties in practice.

Ministry of Justice working group that prepares new draft Penal Code was discussed on several occasions about how to organize economic crimes. A consensus was reached that the work is no longer being interspersed with two heads, as in the present Criminal Code (offenses against the safety of public transport and offenses against official duty), but they should be grouped in a separate head called: an economic crime. Here we outline the most important changes that are proposed in this area.

Second NEW CRIMINAL OFFENSE IN ECONOMIC ABUSE OF TRUST BUSINESS

Under this name suggests the offense, which is the text to read:

(1) Whoever violates the economic business attitude of others and duty to protect the property interests of which is based on the law, the decision of the administrative or judicial authorities, transaction or relationship of trust and thus obtain for himself or for another fi a physical or legal person illegal gain or otherwise to the one whose property interests are required to take care causes damage, shall be punished by imprisonment of six months to five years.

(2) If the offense referred to in paragraph 1 this article has resulted in unlawful financial gain or caused substantial damage, the perpetrator shall be punished by imprisonment of one to ten years.

This is not a theoretical novelty. Served as a model for the offense Untreue (literally translated: infidelity, disloyalty, and freer translation: abuse of trust) of § 266 German Penal Code, which became a model for many national laws, primarily those from German-speaking (§ 153 Austrian Criminal Code and Art. 158th Swiss Penal Code), but also for those of Northern and Central Europe and the Far East and Latin Amerike.2 Besides the direct appropriation of property entrusted to the management, it includes a number of other criminal acts that have the managerial class as a result of damage to the property. This service will also allow the harmonization of Croatian economic criminal law with most members of the European Union, given the imminent accession to the European Union is not unimportant, in addition, it allows the Croatian lawyers that through insight into the literature and racial those countries easier Snada in resolving individual cases, especially when it comes to the contentious areas such as risk activities, approving dubious loans, creating "black funds", causing damage to the concern, the approval of donations, etc.

Proposed for the offense rests on the idea that all companies who has the care of someone else 's property must fulfill that duty conscientiously and in the case of otherwise responsible for any damage caused to the property, whether it is caused by appropriating or otherwise. Criminal offense of criminal activity covers the management structures (management) of the Companies Act (the members of management companies, directors of limited liability companies, members of supervisory boards, etc.). What is lex specialis in relation to the existing criminal offense of abuse of trust from cl. 227th CC, which would commit the remaining

assets entrusted fi as well as natural persons outside economic activities (parents, guardians, attorneys, etc.) .3 Although his description starts with "who", it is delictum Own. The perpetrator is the one who is in business operations must take care of the property entrusted to him under the law (eg, a member of the administration traded company), a decision of an administrative or judicial authority (eg bankruptcy administrator), legal work (eg, an attorney of the company) or other relationship of trust (eg, so-called. factual authority of the company). Further distinguishing characteristics of the damage to the property on which the offender is obliged to take care when placing an indecisive whether the damage was caused by confiscating property, or the long way, in practice, a claim would usually be the very face of the realized gain, but it can also occur when such use does not . How will no longer need to prove that the damage was behind there and someone's favor, makes it a crime. Qualifi ed form in the second century includes the provision of substantial financial gain or causing substantial damage. Criminal frames remain essentially the same as in the traditional offense of abuse of office and authority of art. 337th Paragraph 3 and 4 CC.

On the subjective side will be sought treatment in order to obtain financial benefits (as in the current Articles 292nd paragraph 1 and 337 paragraph 3 and 4 of the CC). While dealing with such purpose and under current law, be regarded as subjective elements of the offense (subjective element of illegality), it is usually seen as synonymous with direct intent, hence, for example, in the judgment of the Supreme Court and Kz-556/03 incorrectly assume that the criminal work of art. 337th Paragraph 4 CC can only be committed with direct intent. The literature and the judicature of countries that have "Untreue" or by another criminal offense no doubt that it can be committed with indirect intent, 4 this will especially come into account in risky business when the perpetrator is in excess of its powers calculated with the possibility of damage, and on her agrees. Dropping treatment in order to obtain illegal material used in the proposed offense will remedy any concerns about the subjective element so that it will be sufficient and dolus eventualis.

Abuse of position in business operations as crucial and central economic offense will include four current penal offenses unconscionable business operations (Art. 291st CC), abuse of authority in economic transactions (Art. 292nd CC), concluding unfavorable contract (cl . 294th CC) and abuse of office in part related to the responsible person (previous cl. 337th paragraphs 3 and 4 of the Criminal Code). These offenses will be deleted in their entirety, except for abuse of power and authority under Art. 337th CC, which will remain, but only as a clerical crime.

Misuse of trust in economic transactions primarily comes into place abuse of his position of cl. 337th Paragraph 3 and 4 CC in part related to the offender as a responsible person. Reducing the crime to officials as perpetrators will remedy already mentioned unsustainable situation whereby offenses MANAGEMENT treated as civil service. Also eliminates a number of weaknesses it legally cl. 337th CC that is already been mentioned in the literature (conformance

description service relations actions, and not those of the economy, lack of logic in the third paragraph under which the gain is realized actions to take in order to obtain non-pecuniary benefits, highlighting the damage caused in paragraph 4, but not in paragraph 3, it is unclear defi ned subjective element, and the differing treatment of the elements in paragraphs 3 and 4, etc.).

New work shall cover the entire offense signing a disadvantageous contract from cl. 294th CC, that of abuse of power and authority under Art. 337th Paragraph 3 and 4 CC differs only in the subjective element (not required treatment in order to obtain financial gain). As will now be sufficient to establish that caused material damage, a new offense will cover the current and conclude a disadvantageous contract.

The same goes for the offense of negligent economic activities (Art. 291st CC). De lege lata, it is difficult to demarcate crime from entering into harmful contracts, it would have been, for example, cases of causing damage by a legal transaction (eg, improper storage of goods), which will also be covered by the new offense of abuse of trust in economic transactions. As you can see from the statutory text, the offense of negligent economic business contains basic idea of a new criminal offense of abuse of trust in economic transactions, but in a less precise manner, where particular criticism deserves the title deeds because the term "unconscionable" indefinite, especially in his subjective components: it includes malpractice and negligence? Jos was once case law held that the offense of negligent operation of the economy from cl. 213th Criminal Code can be committed negligently, 5 and this position can be found in relation to unconscionable business operations in recent literaturi.6 Now, however, will not be nikve doubt that the abuse of trust in economic transactions exclusively intentional tort. Abolition of negligent economic business shall lift the inconsistency in cl. 291st Paragraph 2 CC when it comes to causing bankruptcy, although this matter is a criminal offense to cause bankruptcy, so there should be regulated.

Proposed for the offense justifies the abolition of the current offense of abuse of authority in business activities from cl. 292nd CC, which in the literature rightly called "a relic of the past." 7 The latter offense in its basic form (first century), designed as a felony endangering the abstract - it is not required for any other benefits for which the perpetrator is going to be obtained, and ( It's only qualified katorna circumstance in paragraph 2) - which is the work got too wide contours. It has failed because it legally are intertwined with other offenses. This primarily applies to the general clause of subparagraph 6 first paragraph ("or otherwise grossly violates the law or the rules regarding the use and operation of asset management"), because this is essentially the action contained in the description of the offense of abuse of office and authority under Art. 337th Paragraph 3 and 4 CC. Since the amendments to the Criminal Code of 2006. The provision of the art. 337th Paragraphs 1 CC so that the abuse of power and authority can be made in favor of the legal person, in cases where a legal person obtains benefits, the provision of Art. 337thParagraph 4 CC (which is attached to the 1st century) hardly

differs from those in the art. 292nd Paragraph 2 CC when it's related to the sixth subparagraph of paragraph 1, in both cases, in fact, be obtained similarly described actions resulted in a substantial legal entity. Abolishing cl. 292nd CC will come off in practice, still unresolved dilemma of which of these two provisions give priority because it will be a new criminal offense of abuse of trust in which will be sufficient to establish detriment represented legal entity. Neither the abolition of other forms of abuse of authority in business activities listed in the first five subparagraphs cl. 292nd Paragraphs 1 CC will be nothing to lose because they contain the described behavior already covered by other offenses, and in turn there where the described actions can not be subsumed under any other criminal offense, there is no justification for punishment. We shall show that in all five incrimination:

- Form the first subparagraph (Creating a "black funds") and is now a criminal offense of abuse of office and authority under Art. 337th Paragraph 3 or 4 CC because it has been the formation of such funds represented net assets of the legal person, and this will be proposed by abuse of trust in economic transactions; 8

- Form the second subparagraph (Fake documents and balance) is covered by the offenses breach of running business books or forgery of an official document;

- A form of subparagraph 3 (Obtaining illegal benefits) included in the offense of fraud, according to the proposal, and the new offense of subsidy fraud;

- A form of subparagraph 4 (Denial of the budget) is covered by tax evasion if the denial is preceded Failure to report or filing an incomplete tax return, but if not paid tax that is duly registered, this is a default of the debt is not a criminal offense; 9

- A form of subparagraph 5 (Unspecified spending funds) as it relates to credit funds is fraudulent, and in other cases it is not a criminal offense.

The proposal to abolish the four listed crimes has prompted concern that the courts after the enactment of the new Criminal Code can mass liberated charges for specified offenses committed before its entry into force, referring to the new law as a looser. Here, however, we should bear in mind that the repeal of an offense does not necessarily mean that it has been decriminalized. It can continue to exist in some other criminal act, of which there is already case law.This will happen when the offense between the old and the new law there is no legal continuity, that is, when these offenses belong to the same type of injustice. If continuity is preserved, ie, if only modified effect be reduced the same offense, the court shall apply either old or new law, whichever is the perpetrator blazi.10 Apply to this understanding of the abolished economic crimes, leads to the conclusion that a new criminal offense of abuse of trust in economic transactions usually protects the same legal right as these offenses (property entrusted offenders) and that this was the same method of attack on the good (and the appropriation of its assets or otherwise damaging). Typically there will be continuity between the reversal of economic crimes and related offenses under renewed text so it has to apply the law that was

in effect at the time of the offense because the new law will not be looser (Art. 3, paragraphs 1 and 2 of the CC ).

If such an interpretation would not be accepted, it would prevent not only the reform of economic crimes but also a series of other crimes. Existing difficulties in turn should alleviate the timely preparation of all judicial officials who apply the Penal Code.

3rd Fraud as economic crimes and subsidy fraud

One of najzastupljenih economic crimes in the case law, fraud in business transactions, will suffer only minor modifications. Whilst fraud in business transactions are ultimately unnecessary (in the system based on private ownership does not matter if it obtains the benefit of Physico or legal person) and the modern criminal codes are not separated from "ordinary" fraud, was to be as the most common economic crime keep work if these offenses governing the particular head. Weakness now current text of Article 293 Paragraphs 1 CC is that he, as well as specific conditions fraud unnecessary stresses "the use of payment instruments uncollectible" because anyway below follows the general clause whereby bringing confusion can be made in another way. Such a description of the offense, however, has led to the fact that they were implicated only in cases where the perpetrator raspolagatelja leads to a misleading document (uncollectible check, a certificate proving its solvency, etc.), although the fraud in business transactions can be made without it, among other things and implication (who order goods, tacitly declares that he is able and willing to pay for). Deleting "Use uncollectible payment instruments" will be encouraged, therefore, wider application of this offense.

A special form of business fraud is fraud at the expense of fi nancial interests of the EU. The scam worked out in detail in the Convention for the Protection of fi nancial interests of the European Communities of 26 July 1995, which entered into force on 17 October 2002. It was known as PIF.11 Its purpose is to ensure the harmonization of national legislation with regard to fraud to the detriment of the EU budget. In line with the PIF's and Corpus juris for the protection of fi nancial interests of the EU, which in Article 12. First provides national legislators model such fraud.In this way seeks to protect fi nancial interests of the European Union, both in terms of its expenditures (punishment fraud upon granting subsidies or assistance from the EU budget), but also in respect of its income (punishment of fraud in settling tax or duties EU member states, of which part belongs to the budget EU).

When it comes to protecting the EU budget expenditures, existing fraud in business operations in the Croatian Criminal Code can not be entirely sure that goal, because it is also designed as a proprietary offense with property damage as a necessary feature, and it is assumed, and bringing in a misleading raspolagatelja budgetary funds. Such a concept of fraud is narrower than the concept that defi nes ga PIF in cl. First According to this provision is sufficient The presentation of false or incomplete information or statements, which, indeed, aimed at bringing benefits to the perpetrator, but not necessarily pecuniary damages for the EU in the sense in

which that term is understood in the classical criminal offense of fraud, cause we have a grants. So defi ned fraud primarily means disponiranja violation of freedom, in this case the freedom of states to dispose of its assets. Also not needed raspolagatelja misconception that, moreover, it can be in cahoots with applicants for subsidies. Furthermore, fraud to the detriment of the EU budget can involve the improper use any otherwise properly obtained funds.

For these reasons, the Croatian legislator rightly decided to prescribe a special fraud to the detriment of the EU. He did it the first amendment of the third October 2007. (Official Gazette 110/07) so that in the Penal Code introduced two new offenses, one called "special cases of fraud to the detriment of fi nancial interests of the European Union" (Art. 224b CC), and another called "abuse of authority in conjunction with funds of the European Union "(Art. 292a CC).On the occasion of criticism of these provisions, the legislative amendments to the Criminal Code of 15 December 2008 (Official Gazette No. 152/08) blanked two specified crimes and instead laid down in Article 224b new offense called "fraud to the detriment of the European Communities." This provision provides, on the one hand, the criminal enforcement budget of the EU when it comes to its expenditure (paragraphs 1 and 2), on the other hand when it comes to its revenues (paragraph 3).

Regarding the allegations of fraud to the detriment of EU budgetary expenditure (subsidy fraud), the Working Group decided to accept the concept of the current art. CC 224b, that is, on the one hand incriminate fraudulently obtaining subsidies (paragraph 1 of the new article on subsidy fraud), the other using subsidies contrary to its purpose (paragraph 2 of this article). However, by considering these issues, the Task Force has concluded that Croatia needs the same protection afforded by the EU budget and provide its national budget, which means that the subsidy fraud, must be expanded and the subsidies granted by the Republic of Croatia from its own funds (State aid), so when the new newsroom Article subsidy fraud domestic subsidies fore, to the concluding paragraph, which defi nes the term subsidies, subsidies that are provided from the EU budget equated with a national potporama.13 Thus, the term includes subsidies to state title aid as a subsidy granted by the RC, and grants and aid granted by the EU (either directly or through state bodies).

In a similar manner will resolve fraud to the detriment of the EU budget revenues, as will be described in more under 4

4th TAX EVASION AND CUSTOMS

In the area of taxes and customs duties are proposed replacement several times.

The present offense "tax evasion and other charges" (Art. 286 KZ) should be replaced with new criminal offense called "tax evasion and customs." Customs are actually kind poreza.14 Croatian law treats as well as customs and taxes, because both are considered forms of public duties (Article 2 of the General Tax Code). If so, there is no justification to evasion is treated differently than the tax evasion. This,

however, does not mean that the offense from customs supervision from cl. 296th CC made redundant. It does not protect the interests of the state Skalna fi, but of national security or other national interests, which is evident in the current wording of cl. 296th Paragraphs 1CC where it can no longer be placed under attack law "exceeds the amount of goods or thing of great value," as in earlier sections, but goods whose production and distribution is restricted or prohibited (weapons, drugs, cigarettes).Basically the same route going and German Criminal Law Act because their benefits (Abgabenordnung) first in § 369 equalizes the tax and customs offenses, and afterwards, in § 370 prescribes tax evasion, and § 372 "violating the ban" (Bannbruch), which fits our offense from customs inspection.

On the other hand, proposes the abandonment of the current solution, according to which the offense includes tax evasion and tax contributions, although the contributions form of public benefits (according to Art. 2nd General Tax Code the legal fees, concession fees, fines for process violations, etc.). In relation to them are sufficient sanctions, especially if one has in mind the view of the European Court of Human Rights in the case Maresti that we are avoiding double punishment for the crimes and offenses. Exceptions are only contributing to the health and disability insurance, which default shall, as representing a separate criminal offense (Art. 115th CC), and this should be extended to pension contribution, what should be the subject of a separate offense.

Tax evasion should not be limited to legally earned income, as is done in the present text of Art. 286th Paragraphs 1CC, because in this way, citizens engaged in illegal activities led to a more favorable position than those engaged in lawful activity (for illegal activity, indeed, come to mind of Illegal production of art. 296th CC or illicit trade in art. 297th CC, but with very lenient sentences). Such a decision is contrary to Article 10 Paragraph 2 General Tax Act whereby taxed "income earned without legal basis."

Under the existing provisions of cl. 286th Paragraphs 1 CC, for the achievement of being the offense enough to give false information, and does not seek to be what led to the damage (§ 370 German otherwise of the benefits).Therefore, we propose that the characteristics and performance of the works is to calculate damages in excess of 30,000 kuna, with the damage in the event of false statements made in the reduction of tax liabilities in the amount specified, and for reporting in identifying a tax liability in the amount specified. That means it will not be enough, as now, to just avoid paying a certain amount (now 10,000 million), but that's really the determined set of obligations than the one to be established by law.

The criminal offense of tax evasion and customs fraud and should be integrated to the detriment of the European Union's revenue because such fraud consists in the evasion of taxes and duties that the EU member states are also EU income. In this way you will eliminate the failure of the legislator who is customs fraud to the detriment of the first amendment to the EU from 2007. entered in cl. 298th Paragraph 4 CC, that is after the amendment in 2008.again prescribed in cl. 224b paragraph 3, without simultaneously wiping cl. 298th Paragraph 4 (Which

means that the current applicable cl. 224b § 3 and art. 298th Paragraph 4 contains the same criminalization, but dealing with different words). For these reasons, in the framework of a new criminal offense of tax evasion and customs suggests the conclusion paragraph, according to which, the provisions of the preceding paragraphs apply to the perpetrators in those described actions to diminish the funds of the European Union.

5th BANKRUPTCY OFFENCES

Current crime of abuse of bankruptcy cl. 282nd CC is conceived as an abstract felony endangerment, ie it is sufficient that certain assets of the debtor othering discerned in crisis (state insolvency or inability to pay) could only lead to bankruptcy. Similarly, the solution lies in Austrian criminal law (§ 156 Austrian CC). This is a criminal offense got too wide contours. Besides his name is inadequate because it is not clear how this perpetrator abusing bankruptcy if bankruptcy does not occur. Culpability should be limited to cases where the actions of the perpetrators actually led to the suspension of payments or bankruptcy proceedings, as required by § 283, paragraph 6 German Penal Code, whereby the German doctrine and the consequences for as objective conditions of criminality. It is not justified to punish the perpetrators of that messy business reduced its assets (or the assets of the legal person represented), but after overcoming the crisis, to meet its obligations and avoid bankruptcy. In this context, the working group to propose the amendment, including the name of the offense (almost causing bankruptcy or bankruptcy).

On the other hand, is proposed to extend to the case of criminality and to cause insolvency or inability to pay. If you are punished certain acts committed in an already existing state insolvency or incompetence for payment, then, in particular should be punished the same actions if they bring to the situation (and § 283 para 2 German CC). In this way also the downloadable content qualifi ciranog shape negligent operation of the current economic cl. 291stParagraph 2 (To be abolished).

The latter seeks the way to the acts which are the characteristics of an accurate description, which uses appropriate texts of German and Swiss Penal Code. Be sure to drop the word "suspending charging their claim", which entered the probable errors in the text of Art. 282nd Paragraphs 1 CC (omitting the collection of claims was later described as one of the leads). Opinions are divided over whether to keep the existing provisions of Art. 282nd Paragraph 2 CC by which punishes the responsible person in the legal person for causing the bankruptcy. According to one view, the offense can be committed by anyone, so it means a responsible person representing the entity. On the other hand, points out that it would be no legal text of these provisions could be understood to refer only to the borrower who is personally able to insolvency or inability to pay (eg sole trader).

The amendments are proposed in relation to an offense under Article preference of creditors. 281st CC. Preferential treatment of creditors is privileged to cause a form of bankruptcy because a lender compensates though, so it is illogical for it to be in

front of the abuse of bankruptcy, as well as the current penal code. For these reasons as well as for the previous offense, it should be treated as perpetrators and its representative (which is now said to cl. 281 of 2nd CC) and here predicted as an objective condition criminality open proceedings. How and the offense leads to bankruptcy, is now punishable by up to one year is too low and should consider boosting its upper measures (eg two years in prison). But it will be a criminal offense should be limited to the so-called. incongruent settlement, ie the payment of creditors when this one has no right to set-off, usually prior to the maturity of claims, or in unauthorized manner, for example by a blocked account. There is no justification for punishing the borrower which is a legally valid way pay its obligations when one of vjerovnika.15

6th CRIMES AGAINST COMPETITION

The existing Criminal Code contains two offenses against free competition, and they are violating equality in the exercise of an economic activity (Art. 280th CC) and create a monopolistic market position (Art. 288th CC) and two crimes against fair (fair ) market competition, namely misleading customers (Art. 284th CC) and unfair competition in foreign trade operations (Article 289 CC). In the wider sense, they can be in the last group counted offenses bribery in business transactions (Articles 294b 294.ai CC). Except the last two, which were introduced by the amendments of 2006. year, these crimes are being taken from the former Yugoslav legislation and not in accordance with the Law on Protection of Competition (Official Gazette 79/09).

When it comes to crimes against free-market competition (now 280th and 289th articles CC), the question arises whether the matter altogether regulated by the Criminal Code. Is not protection of free market competition is provided by the Competition Act, which involves the responsibility for the offense ("administrative sanctions"), and to enter into restrictive agreements, abuse of dominant position and engaging in prohibited concentrations with very sensitive sanctions (penalties practically amounting to 10% of its total annual turnover) which expresses the Agency for Competition? The difficulty is that the law of the Competition envisioning the imposition of these measures only to entrepreneurs, but not against responsible persons when undertaking legal persons. For these reasons suggest the crime of violation of freedom of competition and to anticipate punishment (imprisonment up to three years) by the central managers in firms that contrary to the provisions of the Competition enter into a prohibited agreement, which is the most serious form of attack on free market competition.

In particular, it should provide stricter penalties (imprisonment up to five years) for fraud in the procurement which consist of arrangements of competitors in procurement (which are increasingly taking shape!). Therefore, we propose a new offense called "fraud in the procurement," modeled on the German Criminal Code § 298 ("agreements limiting competition in public procurement") and Art. Second Corpus Juris ("fraud in the contest"). It commits an offense to anyone in the public procurement procedure put an offer based on a prohibited agreement.

As an offense against fair competition moves the misleading advertising, which would replace the current criminal act of misleading consumers cl. 284th CC. This work makes anyone offering goods or services to a wider circle of people sent provides false or incomplete data that are essential to contract and that reasonable consumers could be misleading. Incrimination misleading advertising (false advertising) suppresses the unfair competition. This act of fraud differs in that the buyer of the goods or the client does not suffer damage (or she can not prove it), and not even ask for proof of their error, but it is enough that there is a danger in bringing misleading (abstract threat). Given that the false advertising can mislead a wide range of individuals, it should be prescribed as a criminal offense. That is why the protection of fair competition pays great attention in the EU.

The current text of cl. 284th CC has a number of drawbacks. Paragraph 1 limits on false labeling of products in their marketing, but does not include false advertising (which in turn limits the second century, the price of the product, and does not include the quality, origin, components, weight, etc.). In both the item mentioned only products, but services and can be subject to false advertising. For this reason, even the title of "misleading customers" because it does not match the service users are not customers, so we suggest "misleading advertising".

7th Money laundering and disguising

Adopting the Law on the Ratification of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the fi nancing terorizma16 provisions of the Convention have become part of the internal legal order of the Croatian. Entry into force of the Convention required a modification Croatian Criminal Code, 17 which was done by adopting the Law on Amendments to the Criminal Code of the 2008thgodine18 when the title and the provisions of Article 279 Criminal Code amended in its entirety. According to the Law on Prevention of Money Laundering and fi nancing of terrorism, money laundering includes 19 engaging in any activity which conceals the true source novca20 or other property that is suspected of being obtained illegally in the country or abroad, including the replacement or any other transfer of money or other such assets, conceal the true nature, source, location, disposition, movement or ownership of or rights with respect to money or other such property and the acquisition, possession or use of money or other such imovine.21 money laundering offense is aimed at criminalizing money laundering is associated with corruption and organized kriminalitetom22 and curbing illegal conversion of profit into the seemingly legalnu.23 Also his incrimination protects the economic and fi nancial system zemlje.24 Money laundering could also defi ne a process which aims to provoke trace the real source of illegally acquired money, whereby exploiting the fi nancial, and increasingly of non nancial sector and struke.25

The working group for the drafting of the Criminal Code, respecting the controversy around the issue of money laundering conviction of his own criminal activity, the existence of the predicate offense, the relationship of the criminal offense of money laundering and concealment (Article 236 CC) and taking into account the concept of

property as stated in the Convention of the Council Europe, 26 took the view that Article 279 requires amendments, and Article 236 (Concealment) and modeled on Article 9 Convention and in Article 6 UN Convention against Transnational Organized kriminaliteta.27

Article 6 UN Convention requires the punishment of willful commission of conversion or transfer of property, along with 28 of her knows that this is a benefit of criminal offenses, 29 for the purpose of hiding or concealing ing ing illicit origin of the property, or aids attention to any person in the uk ljucenoj begins her fortified criminal AD works to avoid legal pos fects of his work, then hiding or concealing tion true nature, source, location, disposition, movement or ownership of attention or rights relating to property, knowing that such property is repre tion proceeds of crime. Also requiring attention kaznjavanje30 acquisition, possession or use tion of the asset, the know it at the time of receiving the attention, it is one of the benefits of the offense and the participation of it, merge it or negotiate it go the secret of her attention, her attempt to go the attention and her helpers, the encouragement of her, makes her and counseling her for it go the attention of any of the offenses g Prama Article 6 UN Convention. Also, according to the provisions of Article 6 second paragraph, each State Party shall endeavor to apply paragraph 1 Article 6 At the widest list of predicate offenses, which is the Republic of Croatia and made amendments to the Criminal Code already in 2000. year, and that means that it is sufficient that the money originated from any criminal djela.31

Article 9 Council of Europe Convention requires that each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses under domestic law the offenses were committed with the intention of conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of such property or of assisting any person involved in the commission of the predicate offense to evade the legal consequences of their actions, then the concealment or disguise of the true nature, source, location, disposition, movement, rights or ownership of property, knowing that is proceeds and the acquisition, possession or use of property, knowing, at the time of receipt that such property was illegal prihod32 and participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counseling the commission of any of the offenses set out in accordance with Article 9 Convention of the Council of Europe.33

Furthermore, according to the provisions of Article 9 paragraphs 5 and 6 Convention, each State shall ensure that any previous or simultaneous conviction for the predicate offense is not a prerequisite for a conviction for money laundering and that a conviction for money laundering possible if it is proven that the property was derived from the predicate offense, and that it is not necessary to establish that the offense . How these issues are primarily procedural in nature (aka the previous question), a proposal of the Working Group to amend the Criminal Code to the Criminal Procedure Act to include provisions that permit such punishment.

Accordingly, the draft money laundering offense that would be an integral part of the head of offenses against the economy and crime concealment, as follows: 34

Money laundering

(1) Who proceeds of crime transferred, replaced or converted with the aim of concealing its illicit origin, shall be punished by imprisonment of six months to five years.

(2) If the offense referred to in paragraph 1 this Article is committed in the fi nancial or other business or the offender engaged in money laundering or any other benefits under paragraph 1 this article of great value, shall be punished by imprisonment of one to ten years.

(3) Who the fi nancial or other business to take action under paragraph 1 this Article shall act with negligence in relation to the circumstances that the property gain realized the offense, shall be punished by imprisonment of up to three years.

(4) If the gain in paragraphs 1 to 3 this article of crime committed in a foreign country, shall be punished if it is an offense according to the law of the state where it was committed.

(5) If a property gain in paragraphs 1 to 3 this article of crime committed in a foreign state, the offender can be punished even if the act is not punishable under the law of the Croatian and criminal proceedings will be initiated upon approval by the State Attorney General.

(6) an offender who voluntarily contribute to the detection of the offense under paragraphs 1 to 3 this Article, the court may remit the punishment.

Concealment

(1) Who proceeds the person knows that it is the second recorded offense conceals, obtains, possesses or is being used, shall be punished by imprisonment of three months to three years.

(2) The perpetrator of the offense referred to in paragraph 1 will not be sentenced to more stringent than those prescribed for the offense with which he acquired hidden thing / gain.

(3) If the offender is engaged in concealment or any other benefits under paragraph 1 this article of great value, shall be punished by imprisonment of six months to five years.

(4) If the gain in paragraphs 1 and 3 this article of crime committed in a foreign country, shall be punished if it is an offense according to the law of the state where it was committed.

(5) an offender who voluntarily contribute to the detection of the offense under paragraphs 1 and 3 this Article, the court may remit the punishment.

The notion of the high value is referred to as qualified katorna circumstance in both criminal acts requires determination more closely, and so that the concept of "great value" to be replaced exactly a cash equivalent.Alternatively, this can still leave law jurisprudence more closely determination of the concept through case law, a closer look: the legal opinion of the Supreme suda.35

The proposal of the Working Group in Article 279 concepts embodied Article 279 de lege lata 'money, objects, rights and other benefits "covered by the term gain. As noted above, the Working Group is managed primarily the definition of the concept of property as set out in Article 1 paragraph b, of the Convention of the Council of Europe, as well as the term proceeds from these conventions covering any economic benefit that is directly or indirectly derived from or obtained by a criminal djelom.36 How 'assets from the Convention of the Council of Europe and includes one or indirectly caused by committing a criminal offense; Paragraph 1 Article 279 proposals of the Working Group is expanding the provisions in force, or being prepared for possible doubts as to whether the money laundering of the first paragraph Article 279 and the money that has been obtained through the property for which the person knows that the proceeds of crime or whether it refers to money, and that arose as a result of the investment of money, knowing that it is acquired by a criminal offense.

Furthermore, the proposed provisions of the draft money laundering offense, in our opinion, it seems uncontroversial as possible punishment for the concurrence of the offense and the predicate offenses because of the difference in the object of protection of predicate offenses and money laundering, but also because of the actions suzivanja commission of the offense to carry the , exchange or conversion of the proceeds djelom.37

Also, paragraph 1 Article 279 of the current amended to explicitly set as the target offense, and in a way that the operations referred to in I'll have to take actions aimed at disguising the illicit origin of the property, which also makes and its subjective features. The Working Group is guided by Article 9 paragraph 1.a. Council of Europe Convention when making such a proposal. It also did not need to hide really happened. Supreme Court Hrvatske38 considers that the offense of money laundering de lege lata the finished investing cash in a variety of jobs. Perpetrators (former spouse) have put paid at least 5.6 million kuna from the sale of various narcotic drugs in the purchase of real estate (apartments, office space and building land), orocavali at various banks and short-term loans to, usually in the name of close relatives, thus the committed the offense of money laundering. As for the good of the guard of the offense, its position in the head of offenses against the economy, ie, de lege lata, offenses against the security of payment and business operations, impose the solution: his incrimination protects the economic and fi nancial system zemlje.39 for Punishment acting negligently with the circumstances that we are dealing proceeds realized crime is still retained (see and compare the proposal in

paragraph 3 to paragraph 4 de lege lata). As already noted, most importantly, because of the possibility punishment for negligence, we think that the offense under paragraph 1 can be committed with indirect intent. Also, it is accepted that the de lege erase part of the legal text in force requiring that the proceeds of which it seeks to "wash", "knows that the offense occurred," which would make clear that the proceeds of crime objective circumstances of the offense. This is supported by the provision of the UN Convention, admittedly procedural nature, to knowledge, intent or purpose as an element of an offense may be inferred from objective factual okolnosti.40

But instead of that knowledge of the gains of the offense, the commission of acts of de lege would be held, if the task force does not change its stance, the existence of the goal of concealing the illicit origin of proceeds. We think that if the perpetrator was not sure, but agrees to cover up the illegal origin, enters the zone punishable paragraph 1, 41 but it might be the words "in order to" replace it with "working" or some other more appropriate words to clearly show that it is enough that the offender consents to the act of concealing its illicit origin of proceeds. Specifically, the term target of offenses known in German criminal law (German Absichtsdelikte), and although the prevailing view is that the notion of a subjective attitude means Absicht42 perpetrators analogous direct intent of first instance, it is not impossible that with certain offenses term gain wider significance and to grasp and compliance, 43 which would be just in this part of the case.

That would constitute a criminal offense of money laundering or concealment must be done about the transfer, exchange or conversion or concealment of proceeds of crime, which means that only the concealment of illegally obtained money dovoljno44 if not also not about monetary gain realized proceeds. The Republic of Croatia has not seized the opportunity by making a reservation, or prescribing catalog of offenses which must originate from illegal money, which means that 45 is punishable zone to apply the money laundering offense is very broad, but it closed only to offenses. Therefore it is very important to think about and that would be considered a criminal offense behavior, such that a breach of competition rules to be criminal acts, that will be a judgment prekrsaji.46 Maresti ESLJP47 impose termination of running aggregation misdemeanor and criminal procedure and requires demarcation of offenses and violations for the same injury, which just working group to amend the Criminal Code and makes taking care violations and crimes do not match.

Paragraph 3 Article 279 de lege lata is deleted because it is qualified katorna circumstance that the offense was committed by a group or a criminal organization de lege envision as a separate criminal offense.

The proposal in paragraph 4 Article 279 (Former paragraph 5) omitted the reference to Article 16 second item and 3Criminal law is nepotrebno.48 If the predicate offense committed abroad is also an offense under Croatian law, there is no need to seek approval and even the State Attorney General (for the perpetrator of the offense is not on trial in Croatia). However, if the gain in paragraphs 1 to 3 of

crime committed in a foreign state, the offender can be punished even if the act is not punishable under the law of the Croatian and criminal proceedings will be initiated upon approval by the State Attorney General. The new proposal of the Working Group in accordance with Article 9paragraph. 7th Council of Europe Convention, according to which each party ensures that predicate offenses for money laundering extend to conduct that occurred in another state, and which constitute an offense in the country, and which would have been carried out on the territory of the Party, represented by the predicate offense. Each Party may provide that the only prerequisite is that the conduct would have constituted a predicate offense had it occurred in its territory.

As for the offense of concealing, the Task Force has not yet taken the stand from which the head de lege this work is located. We believe that it should be continued in the offenses against imovine.49 The concealment makes anyone gain the person knows that it is the second recorded offense conceals, obtains, possesses or is being used. Also, the obligation laid down in Article 9 paragraph 1 point B. The Council of Europe Convention penalizing make it a crime to conceal, not a criminal offense of money laundering. The above provision of the Convention obliges prescribing the offense of concealing or disguising the legal nature, source, location, disposition, movement, rights or ownership of property, knowing that such property is proceeds. For nailing envisioning and milder penalty box. As can be seen from the proposal, no more talking about concealing things, such as the decision in force, but the proceeds that it includes and stvari.50

Working Group in the motion offense of concealing, unlike the money laundering offense, has not adopted the proposal to de lege erase part of the legal text in force requiring that the proceeds of which conceals, acquires, possesses or uses "knows that a result of crime "because the punishment for such an offense should continue to require that the perpetrator must be aware of all the characteristics of the offense, and therefore that thing that comes out of concealing a crime. But as the money laundering offense, we think there is enough indirect intent for the commission of the offense. Also, for accuracy, it should be noted that the matter must be obtained from each other, which clearly excludes the existence of a criminal offense in the case of hiding things obtained their own criminal activity, which is not the case in the money laundering offense, where possible concurrence of predicate offenses and money laundering.

The proposed paragraph 2 eliminates inconsistencies in the crime of concealing de lege lata, which allows it to prikrivatelj can be harder than punished perpetrators of criminal acts from which derives thing, like the tiny kraðe.51 concealment may have severe forms that require a thesis sentence, and in the third paragraph Proposes qualifi ed shape, or crackdown if the offender engaged in concealing or disguising it comes to gain large vrijednosti.52

In conclusion we note that the working group for the drafting of a new Criminal Code regarding the proposed offenses of money laundering and concealment must still take into account the recommendations of the Council of Europe control agency

for money laundering MONEYVAL A53 and still resolve several key issues listed above before a final draft of the proposal to adopt the above Articles.

8th CRIMES AGAINST CAPITAL MARKET

Law on crimes against the markets are regulated kapitala54 four offenses against the capital market, and this use, disclosure and recommending inside information (Article 3), the manipulation of the market (Article 4), unauthorized provision of investment services (Article 5) and unauthorized revelaing jobs tied agent (Article 6). As mentioned Act related to the matter which is regulated by the Capital Market Act (OG 88/08, 146/08 and 74/09) and the by-laws pertaining to rules of conduct capital market participants, such as the Regulations on conditions of implementation of the program of purchase of own shares and stabilization measures fi nancial instruments under which the exemption from the prohibition of market abuse (OG 5/09), Rules on disclosure of inside information which directly relate to the issuer and the issuer's legitimate interests DETERMINATION delay in disclosure (NN 5/09), Ordinance on accepted market practices (OG 5/09) and the Ordinance on manipulation and obligation to inform the suspect of market abuse (OG 5/09), it is necessary for interpreting these crimes to resort to laws and regulations that govern allowed behavior in capital markets. Also, it is important to know the regulations on the capital market and the concept of domination and control over 55 different fi nancial instrumentima.56

Capital Market Act in the Croatian legal system was transferred to, among others, the Directive 2003/6/EC of the European Parliament and of the Council on insider dealing and market manipulation (market abuse) .57 The law was introduced by European standards in terms of abuse and trzista58 one of the objectives of the regulation of capital markets and the "elimination of manipulation." 59 In this regard, a very important leads CESR-A60 specifying which behaviors are considered abuse of market kapitala.61 CESR's guidelines in their designated national agencies to monitor fi nancial services cited three priority areas of action: to regulate what is deemed compatible behavior in providing fi nancial services in the capital market, which procedures are considered market manipulation, and the manner in which the report or monitor suspicious transakcije.62 In this regard, the Croatian Agency for Supervision of fi nancial services issued The Ordinance on manipulation and obligation to inform the suspect of abuse trzista63 which stipulated that procedures can be considered abuse of the market and the obligations of market participants with a view to preventing and otkrivanja.64

Capital Market Act also prescribes the offenses relating to market abuse (part of the seventh, widgets 568th-582.65).How judgment Maresti ESLJP66 impose termination of running aggregation misdemeanor and criminal procedure and requires demarcation and offenders for the same injury, and this is exactly working group to amend the Criminal Code and makes taking care violations and criminal offenses in the field of capital market do not match. Recognizing Maresti judgment, the proposal of the Working Group that the offenses stipulated in the Law on crimes against the capital market partially incorporate the new head of offenses against the

economy and partly to the Capital Market Law as a misdemeanor. At the same time, it will be necessary to align the prescribed offenses against the law of capital markets with new offenses. In particular we believe that you should consider deleting or changing the provisions of Article 579th points 7th and 8 relating to the responsibility of Physico person for theses offenses related to the abuse of the market and, consequently, points 4, 8 and 9 Article 579th relating to the responsibility of Physico persons for offenses relating to market abuse.

Accordingly, a new draft of offenses against the capital market which would be an integral part of the head of offenses against the economy as follows:

Abuse of privileged information

(1) Who disposal of privileged information:

First for their own or on behalf of others, directly or indirectly, acquire or dispose of / dispose fi nancial instrument to which the information relates,

Second discloses, communicates, delivers or otherwise makes available to the privileged information to another person,

3rd recommendation of another person or the states that acquire or dispose of fi nancial instrument to which the information relates,

shall be punished by imprisonment of up to three years.

(2) If the offense referred to in paragraph 1 committed by a person who is possessed privileged information on the basis of membership in a management or supervisory bodies of the issuer, the issuer of the share capital, access to information through the performance of their work or duties

shall be punished by imprisonment of six months to five years.

(3) If the offense referred to in paragraph 1 this article has resulted in or caused to another substantial property damage, the perpetrator shall be punished by imprisonment of six months to five years.

(4) If the offense referred to in paragraph 2 this article has resulted in or caused to another substantial property damage, the perpetrator shall be punished by imprisonment of one to eight years.

Misuse of capital market

(1) Whoever, contrary to regulations of the Capital Markets

First conducts a transaction or order to trade which can give false or misleading messages about the supply, demand or price of fi nancial instruments, and acting in cooperation with one or more personal holding cost fi cial instrument one or more of the abnormal or artificial level,

Second when concluding a transaction or giving orders to trading procedures used fi racism or other forms of deception or fraud,

3rd disseminates information through the media, the internet or any other means / agent who provides or is likely to give, false or misleading signals as to fi nancial instruments, including the dissemination of rumors and false or misleading news, where the person who made the dissemination knew, or should have know that the information was false or misleading,

shall be punished by imprisonment of up to three years.

(2) If the actions in paragraph 1 this Article, the perpetrator considerable material gain or has caused substantial property damage, shall be punished by imprisonment of one to five years.

As can be seen from the proposal, the current offense use, disclosure and recommending inside information would be retained as an offense, with certain modifications, along with the criminal offense of market manipulation, while offenses Unauthorized investment services and unauthorized revelaing jobs tied agent became violations . Was proposed is not inconsistent with Directive 2003/6/EC. Specifically, Article 14 Directive requires the establishment of effi cient system for sanctioning violations of the rules of conduct on the capital markets, but does not require that all violations of laws against criminal responsibility of the perpetrators.

Criminal offense the use, disclosure and recommending inside information, 67 known as insider trading, has been passed in accordance with Directive 2003/6 / EC following the Austrian model rjesenja.68 Working Group's proposal to amend the Criminal Code that the work of de lege reads misuse of inside information, but While maintaining the three possible types of actions called. primary and secondary insideri69 be committed, and that the use, disclosure and recommending inside information. The perpetrator of this crime can only be an insider or a person who possesses inside information (Article 456, paragraph 2 CMA). Specifically, Articles 456 and 457 CMA also applies to any person who possesses inside information and who knows, or should know that it is inside information (secondary insiders), and not about people who came to privileged information, based on membership in a management or supervisory bodies of the issuer , the share capital of the issuer, access to information through the performance of their work or duties (primary insiders). According to the proposal of the Working Group, the property is a qualified primary insiders katorna circumstance, as in the past, but in the draft paragraph 2 omitted people who learned the inside information on the basis of the offense, which is strictly punished in force.

To be considered privileged information, that is conducive for the abuse, it is necessary to include the following elements: it must be precise nature, should not be publicly available, and must be directly or indirectly related to the issuer's finan cial instrument or the fi nancial instrument and must be likely to have a significant

impact on the prices of these fi nancial instruments or related derivative fi nancial instruments when he was publicly dostupna.70 It is likely that such a significant impact exists if a reasonable investor would be likely to use such information as part of the basis of his investment decisions.

In the draft of the legal description of the offense of abuse of privileged information has been omitted and its subjective significance, which is the current solution or not the market is that the perpetrator acts with an aim other fi a physical person or legal entity acquiring unlawful material gain or to a physical or other fi legal person causes damage. The directive 2003/6/EC contains no specific goal, and there would, in the opinion of the Working Group to amend the Criminal Code, a new proposal for legislation facilitated the process of proof, while the expansion of liability.

At the same time, the proposal contains a new paragraph (paragraph 4) which prescribes imprisonment 1:00 to 8:00 years if the treatment insiders substantial financial gain or other caused substantial property damage.

As before, the crime of abuse of privileged information does not apply to transactions conducted in the discharge of obligations of the acquisition or disposal fi nancial instruments where that obligation results from an agreement concluded before the person got privileged informaciju.71 Also, market abuse will not be Programs deemed purchase of its own shares and stabilization fi nancial instruments, under the conditions stipulated by special regulations adopted by the Agency, the programs and the purchase of its own shares stabilize fi nancial instruments in accordance with Commission Regulation EC No. 2273/2003.72

It is important to note that the concept of abuse trzista73 applies not only to the current offense of using, and recommending disclosure of inside information, but also to the offense of market manipulation (Article 4 of the Offences against the capital markets). Also draw attention to the name of the new draft criminal diversion of the capital market, which should de lege replace the offense of market manipulation may not be the best solution given that the market abuse kapitala74 consolidates and use, disclosure and recommending inside information and market manipulation.

The current paragraph 5 Article 3 Of the Offences against the capital market prescribes punishment for attempted primary and secondary insiders when it comes to privileged information available for the acquisition or disposal fi cial instruments to which that information relates, for their own account or the account of a third party, either directly or indirectly. Therefore, the attempt is not related to the detection or recommend, but only for the use of insider information. The new draft does not contain a number of provisions of the criminality of attempts, although the punishment for attempted primary insiders continues to be possible because it is slated to five years imprisonment, or it will be possible for secondary insiders if the intention is to obtain substantial financial gain or to cause substantial property damage . However, unlike the current provision, the attempt will be punished not only in the case of using privileged information, but also for detecting

or recommend privileged information. Basis for punishment only attempt to use privileged information, a solution de lege lata, is based on Article 456 Paragraph 1 ZTK.75

For other key crime against capital market, market manipulation (Article 4 of the Offences against the capital markets), the Task Force considered changing his name to misuse capital markets. But as we have already pointed out, it must still discuss whether the new name be the final draft of the working group because of possible confusion that the new name could cause the significance of the concept of market manipulation. As the previous article use, revelaing and recommending inside information and insider trading, this article is taken from of the Offences against the capital market (Art. 4) and in accordance with Directive preureðen 2003/06/EZ Articles 2 to 4 Solution de lega lata is based on the Slovenian modelu.76

As with the regulation of the offense of abuse of privileged information in the proposal legal description omitted the subjective element of the crime, and did not require that the perpetrator acts with an aim of acquiring unlawful or other material benefit. Also, Directive 2003/6/EC does not contain a specific goal, and there would, in the opinion of the Working Group, the new legislation proposal would ease the process of proof, whilst extending liability.

As for the actions referred to in paragraph 1 draft proposal, they are, as usual, based on conduct that is covered by the concept of market manipulation in Article 466 CMA and based on the provisions of Directive 2003/6/EC, (Article 1, Item 2.77), but with some updated conceptual solutions that are currently in force. The working group is in his description of the modalities of actions directly using terms from the Directive.

As far as the punishment for the attempt, it is scheduled if there is an intention to obtain substantial financial gain or to cause significant property damage, and the punishment for attempted commission of the underlying offense under paragraph 1 no longer envision.

That it is not always easy to demarcate crimes of market manipulation and using privileged information, will be presented on the example of the German court prakse78 that affects punish conduct that is considered scalpingom.79 The district court held that the word on the primary insider and convicted perpetrators due to the use of confidential information, while the German Federal Court, in our view correctly, opted for the offense of manipulating trzistem.80 SO, a journalist specializing in commercial law issues, he was editor of one trading expert edition and had a great reputation in public, among other things because of the frequent appearances on television.He was an advisor to two funds for operations with stakeholders, but he founded his own one such fund, which is - mostly borrowed money - has acquired the shares. O. was recommended two funds of which he was a consultant to buy shares of its stock, as they did. This has led to a rise in share prices of the fund and O. O. them afterwards sold profitably - just over two weeks in October 2000. year saw a gain of 15,000 euros.

With regard to criminal offenses under Articles 5 and 6 Of the Offences against the capital market, unauthorized provision of investment services and performing unauthorized tied agent, the Task Force believes that it should be punished as specified prekrsaji.81 No solution could come into question if it is set as the continuity problem.Specifically, the entry into force of the capital markets ceased Securities Act, 82 which is in the Articles of 149th to 154th prescribing offenses against market kapitala.83 As the criminal offense of Illicit trade in securities (Article 154) of the Securities Act transferred to article 5 Of the Offences against the capital market, the working group must find a solution for the interim period. However, if the crime alleged decision yet and de lege punished as such, it requires a fundamental change and is considering the sanctions that are currently foreclosed, questionable whether it would be necessary to punish and the attempt of the criminal offense and it would be useful to attempt to punish if the perpetrator had the intent to obtain a substantial gain. Specifically, de lege lata, for Unauthorized fi nancial services shall be one that contrary to the provisions of the Capital Market unauthorized provides investment services for the purpose of acquiring financial gain. Shall be the one who organizes a group of persons for unauthorized provision of investment services contrary to the provisions of the CMA in order to acquire financial gain. As seen in the previous two draft acts, abuse of privileged information and misuse of capital market, omitted subjective element of an offense, that is not the market that the perpetrator acts with an aim of acquiring unlawful or other material benefit, if the legislature decides to keep it, and continues as criminal, it is necessary here to give up his subjective characteristics.Especially prescribing punishment for organizing a group of people doing unauthorized provision of investment services is unnecessary if you take into account the intention of the Working Group to amend the Criminal Code to the regulations in a separate article crackdown for organizing a group to commit the crime.

The offense conduct unauthorized activities tied agent who makes the contravention of the provisions of the Capital Markets unauthorized performs tied agent in order to obtain financial gain. Related representative is a person appointed for the purpose of investment firms that, under the full and unconditional responsibility of an investment firm that acts on behalf of performing the duties prescribed by ZTK zastupnika.84 related to the investment firm may ovlastiti85 tied agent on its behalf to perform promotional activities for the investment societies, investment firms offering services, receive and transmit orders from clients or potential clients, the placement of fi nancial instruments and advice in connection with the fi nancial instruments and services that investment firms nudi.86 tied agent shall not dispose of money and / or fi nancial instruments client or potential client the investment firm and can only perform tasks on behalf of an investment firm. As this is a new offense, or a crime that did not exist in securities law, we believe that the issue of continuity would not be a problem if this crime becomes an offense de lege.

In any case, if we adopt the opinion of the Working Group that the alleged acts of the last two de lege punished as a misdemeanor, but if one of them is defined as a crime

in the new heads have punished offenses against the economy, it is the misdemeanor provisions of the market abolish capital punishment for their transgressions, which is contrary to the judgment Maresti, solution de lege lata.87

Sidebar

Summary

ECONOMIC Offences CRIMINAL IN THE NEW CRIMINAL CODE

Economic Criminal Offences regulated by the Croatian Criminal Code require thorough reconstruction. Descriptions of some economic Criminal Offences in the Criminal Code are entirely outdated and do not Correspond to the present time. The need to modernise this part of criminal law is near the Croatia's forthcoming accession to the EU, Which calls for the harmonization of national criminal law systems, especially in the field of economic criminal law, by Ensuring the protection of market competition from prohibited agreements (cartels), and by Punishing: Committed fraud to the detriment of the EU budget, offering bribes in economic operations, insider trading, market manipulation, etc.. Something has already been done in this field (for example, the inclusion of the Provisions on fraud to the detriment of the EU in the CC, the adoption of a special law regulating Criminal Offences Committed Against Capital Markets), but this is still not enough . The Working Group of the Ministry of Justice, Which has been preparing the Draft New Criminal Code has discussed on several occasions how to regulate economic Criminal Offences. A consensus has been reached that these Offences should no longer be scattered in two chapters, as is the case in the present Criminal Code (Criminal Offences Against the Safety of Payment Transactions and Criminal Offences against Official Duty), but they should be brought together in those separate chapter Entitled Criminal Offences Against the Economy. The paper presents the most important Which changes have been proposed, and Which Primarily relate to the criminal offense of abuse of trust in business operations and Subvention abusive, and customs and tax evasion.The paper also outlines changes to bankruptcy Criminal Offences, Criminal Offences against market competition, money laundering and concealment. The regulation of Criminal Offences Against Capital Markets in the Criminal Code is also presented.

Footnote

1 tells of the "Europeanized national criminal law" (Sieber, Die Zukunft des Europäischen Strafrechts, ZStW 2009, p. 6).

2 provides a comprehensive comparative review Foffani Die Untreue them rechtsvergleichenden Überblick, in: Festschrift für Klaus Tiedemann, 2008, p. 767 and further.

3, we'll accept and merge the two forms of abuse of trust property in a unique pen neno work (as quoted in foreign systems), but if you decide to separate the head of offenses against the economy, they must be still disengaged.

4 for the German criminal law v. Schönke / Schröder, Strafgesetzbuch, Comment, 27 Aufl., 2006, § 266, marginal no. 49, p. 2331, for Switzerland Stefan Trechsel et al. Schweizerisches Strafgesetzbuch, Praxiskommentar, 2008, cl.158, no boundary. 14, p. 749, for the Austrian Forreger - Fabrizy, Strafgesetzbuch, 1999, § 153 marginal no. 7, p.469th

5 critically about these practices Zlatarić Criminal Code in its practical application, vol. II, 1958, p. 268th

Bacic 6 / Pavlovic, Commentary of the Criminal Code, 2004, p. 1005th

7 Horvatic, New Croatian Criminal Law, 1997, p. 531st

8 So with German jurisprudence creation of black funds ("schwarze Kassen") constitute a criminal offense "Untreue", see decision of the German Federal Court of Justice in the so. case of Siemens / ENEL, Neue Juristische Wochenschrift, 2009, p. 89th

9 "Only tax evasion (tax time) may not in any circumstances be a criminal offense" (Tiedemann, Wirtschaftsstrafrecht, Besonderer Teil, 2008, p. 49).

10 Schönke / Schröder (note 4), § 2, no boundary. 25, p. 64th

11 abbreviation French title: La Convention Relative à la protection des intérêts fi nanciers des Communautés européennes.

12 Croatian translation published by the Croatian Association of European Criminal Law 2003rd called Corpus Juris 2000th

13 A similar technique was used by the German Criminal Code § 264 governing the subsidy fraud.

14 According to contemporary understanding, "particularly bonded criminal law no longer exists" (Tiedemann, p. 9, p. 45).

15 Thus, the German Criminal Code § 283c regulating the preference of creditors.

16 Official Gazette 5/08. The Convention entered into force on 1 May 2008.

17 See Draft Law on the Ratification of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism fi, p. 3rd

18 Official Gazette 152/08.

19 Official Gazette 87/09.

20 For the definition of the concept of money laundering and see Directive 2005/60/EC on the prevention of finan cial system for the purpose of money laundering and terrorist fi nancing.

21 Article 2 Law. See also article Cindori, S.: System of Prevention of Money Laundering, Financial Theory and Practice 31 (1) p. 55-72 (2007).

22 GARAČIĆ, A., Penal Code in the case law, special part, second, revised and expanded edition, Organizer, Zagreb, 2009., P. 615th

23 Novoselec, P., Introduction to Economic Criminal Law, Faculty of Law, University of Zagreb, 2009., P. 186th

24 See Novoselec P., op. cit. 192nd "The U.S. Office for Money Laundering Prevention (FinCEN) has described the process of money laundering through three stages: placement, processing and integration. Stage in depositing funds from criminal activities are in the fi nancial system or invest in real estate and movables. Interject main objective Money flows in fi nancial or ga switch outside the country., the launderers exit their earnings, which is the phase with respect to the detection of dirty money is crucial. " (Maros, I., 1999. Role and powers of the Anti-Money Laundering, Police and Security (3-4), 241-242, cited by: Cindori, page 56.)

Cindori 25, p. 56th

26 The concept of property under Article 1 B. The Council of Europe covers all types of assets, tangible and nematerijanu, movable and immovable, and legal documents or instruments evidencing title to or interest in such property.

27 Law on the Ratification of United Nations organization is of the Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, and Prokol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the National Gazette 14/02.

28 The concept of property, according to Article 2 d of the UN Convention, includes property of every kind, regardless of whether the material or non-material, movable or immovable, or if the legal documents that prove ownership or any rights over such property.

29 Knowledge, intent or purpose, as an element of the offense, may be inferred from objective factual circumstances (Article 6, paragraph 2 of the Convention tf).

30 In accordance with the basic tenets of the legal system of the State Party (Article 6, paragraph 1.b of the Convention).

31 More of the circle of crime from which must come to see the dirty money: Novoselec, P., Introduction to Economic Criminal Law, Faculty of Law, University of Zagreb, 2009., P. 193rd to 194th

32 In accordance with the constitutional principles of individual countries and the fundamental principles of its legal system, cl. 9th st.1.b. Council of Europe Convention.

33 Each Party may adopt such legislative and other measures as may be necessary to establish as criminal offenses under its domestic law all or some of the acts referred to in paragraph 1 Article 9 Convention when the offender is suspected that the property was the proceeds of crime and / or when he had to assume that the property is proceeds of crime (Art. 9 § 3 of the Convention).

34 The draft refers to the proposal from the Task Force, ending, November 2010. years and still not be considered a final draft of the proposal.

35 See Table legal opinion of the Supreme Court created by Sanja Nola, in article Maršavelski, A.: fixed or unspecified value in criminal law, Croatian Annual of Criminal Law and Practice (Zagreb), Vol 16, No. 1/2009, pp. . 117-146.

36 The economic benefits can consist of any property, as defined in Article 1, point B. Convention.

37 See, also cited the Supreme Court of the Supreme Court, I Kz-137/01.

38 The Supreme Court, I Kz-137/01, HLJKPP 1/2001, p. 672nd

39 See Novoselec, P., (note 31), p. 192nd

40 See Article 6 Paragraph 2 point of f. UN Convention.

41 See more Novoselec, P., op., P. 195th to 196th

42 Absicht generally means objective as subjective elements of the offense, and matches the intent in terms of the former Criminal Code of the Republic of Croatia. This term should be distinguished from the term which is identical Vorsatz today's notion of intentions, and fits the erstwhile concept intent.

43 See detailed perspective of Swiss law Gukelberger, B., Die Absichtsdelikte des Schweizerischen Strafgesetzbuches, Verlag Herbert Lang & Cie. AG Bern, 1968., From German Gehrig, K., Der der Absichtsbegriff Straftatbeständen des besonderen Teils des StGB, Duncker & Humblot, Berlin, 1986.

44 According to the novel of the Criminal Code of Croatia of 29 March 1996. it was enough to laundering money obtained an "unlawful act."

45 See Article 9 Paragraph 4 Council of Europe Convention.

46 See upravnokaznene extent of the Law on Protection of Competition (Official Gazette 79/2009), in particular Article 61 and 62 The law came into force on 1 October 2010.

47 Judgment of 23 7th 2009th, Application no. 55759/07, to see the complete judgment http://sljeme. usud.hr / doom / prakES.nsf /

48 Special to bringing criminal proceedings for offenses committed outside Croatian territory.

49 Failing to clean the property crimes, ie legal property which infringe the property, Novoselec, P., op., P. 192nd

50 The notion enshrined in the money, as it is stated in the decision of Supreme Court, Kz-680/75 of 31 July 1975., by: GARAČIĆ, A., op., p. 504th

51 Thus, Article 160 Paragraph 1 second point Swiss Penal Code, and Art. Three hundred and first Croatian Criminal Code in force (to help the perpetrator after the commission of the offense).

52 working groups during the drafting of this proposal, guided by § 260 German Criminal Code and Article 160 § 2Swiss Penal Code.

53 Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism, Council of Europe, http://www.coe.int/t/dghl/monitoring/moneyval/

54 Official Gazette 152/08. The law came into force on 1 January 2009.

55 See Lowenfels, LD, Bromberg, AR, Securities Market Manipulations: An examination and analysis of domination ans control, fortrunning and parking, Albany Law Review, Volume 55, Number 2, 1991., P. 295th

56 Financial instruments are transferable securities, money market instruments, units in collective investment undertakings, derivatives that include: options (options), futures (futures), pronouns (swaps), forward rate agreements (forward rate agreements), etc . according to Article 3 CMA.

57 Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), http://eur-lex.europa.eu

58 "The new defi nition inside information (previously of material fact) and market abuse (previous market manipulation). Shall not be considered market abuse programs purchase of its own shares and the stabilization of fi nancial instruments, under the conditions stipulated by special regulations that will bring the Agency in accordance with a solution of Commission Regulation (EC) No. 2273/2003. For issuers to which the provisions of this part of the Act is the obligation to keep a list of people who have access to inside information. As one of the conditions under which it will be deemed to have been an abuse of market introduces accepted market practices as practices that are reasonably expected in one or more of the fi nancial markets and are accepted by the Agency in accordance with the prescribed procedure, which will be detailed to prescribe special regulations ... " Draft bill on the capital market with the final bill, Ministry of Finance, Finance, Croatia, June 2008.

59 Reducing malpractice is one of the main objectives of the regulation of capital markets in the U.S. yet since 1934.year, according to the Securities Exchange Act zakonopisaca (USA), S. Rep.. No. 1455, 73d Cong., 2d Sess. 30 (1934), reprinted din 5

Legislative history oft he Securities Act of 1933 and the Securities Exchange Act of 1934, Item 20, at 30 (1973), cited by: Lowenfels, Bromberg and LD, AR, p. 294th

60 The Committee of European Securities Regulators.

61 See The Committee of European Securities Regulators, Market Abuse Directive, Level 3 - fi rst set of CESR guidance and information on the common operation oft he Directive, Ref: CESR/04-505b II Level 3 - second set of CESR guidance and information on the common operation of the Directive to the market, Ref: CESR/06-562b.

62 Ibid, First set of guidlines, p. 3rd

63 Official Gazette no. 5/09.

64 mentioned the obligations laid down in Articles 468th and 469th CMA.

Articles 65 568th to 582nd regulate theses and other violations of investment firms and credit institutions and fund management investment fund with a public offering, violation of any other person, violation of exchange, minor and violations of the issuer whose securities are listed on the Regulated market, simple offense of any other person of the issuer whose securities are listed on the Regulated market, minor and offenses relating to market abuse, violation of Physico people in connection with market abuse and violations of the Central Depositary.

66 Judgment of 23 7th 2009th, Application no. 55759/07, to see the complete judgment http://sljeme. usud.hr / doom / prakES.nsf /

67 This offense is linked to Article 456, 457 and 458 Capital Market Act.

68 See First set of guidlines, p. 8th-21st

69 More on the concepts of primary and secondary insider, see: Novoselec, P., footnote 31, p. 210th

70 Article 455 CMA.

71 According to Article 456 Paragraph 4 CMA.

72 Article 454 paragraphs 1 and 2 CMA.

73 CMA Part IV, entitled Abuse, consists of head I.-V. Chapter II. governing privileged information, and Title III.Market manipulation. Also, see the Offences against market abuse, the articles of 577th to 579th CMA.

74 Market abuse consists of insider dealing and market manipulation. The objective of legislation against insider dealing is the same as that of legislation against market manipulation ... (Defi nition, t. 12th, Directive 2003/6/EC).

75 See explanation obredbi of the Offences Against the Capital Market, p. 6th

76 See First set of guidlines, p. 416th to 426th

77 "Market manipulation" Shall mean:

(A) transactions or orders to trade:

- Which give, or are likely to give, false or misleading signals as to the supply of, demand for or price of fi nancial instruments, or

- Which secure, by a person, or persons acting in collaboration, the price of one or several fi nancial instruments at an abnormal or Artif cial level, unless the person who entered into the transactions or currently being issued the orders to trade establishes that his reasons for so doing are legitimate and that these transactions or orders to trade conform to accepted market practices on the regulated market concerned;

(B) transactions or orders to trade Which employ fi ctitious devices or any other form of deception or contrivance;

(C) dissemination of information through the media, including the Internet, or by any other means, Which gives, or is likely to give, false or misleading signals as to fi nancial instruments, including the dissemination of Rumours and false or misleading news, where the person who made the dissemination knew, or it oughta have known, that the information was false or misleading. In respect of journalists when they act in their professional capacity Such dissemination of information is to be assessed, without prejudice to Article 11, taking into account the rules governing their profession, unless Those persons derive, directly or indirectly, an advantage or profi ts from the dissemination of the information in question.

Entscheidungen 78, Band 48, p. 373, quoted by: Novoselec, P. (note 31), p. 216th to 217th

79 Scalping includes the acquisition of shares in order to buy their recommendation to their increased cost and to make them the perpetrator (scalper) then sold at higher price and made a profit. "It is a conflict of interest on the takvg perpetrators because the public does not know that he recommends selling the shares which he himself realized profits" (Noveselec, P., op., P. 217). You can see more about the types of offenses called insider trading, scalping, frontrunnig and parking in the articles: Lowenfels, LD, Bromberg, AR, op.cit., P. 293rd to 365th, de Vauplane, Hubert; Simart, Odile, Concept of Securities Manipulation and Its Foundations in France and the USA, The Brooklyn Journal of International Law, Vol 23, Issue 1 (1997), p. 203rd to 240th, and Ruggiero, Eugenio, Regulation of Insider Trading in Italy, The Brooklyn Journal of International Law, Vol 22, Issue 1 (1996), p. 157th to 202nd

80 Article 20a, paragraph 1 t. Second German Act on Trading in Securities.

81 This mindset and adoption requires the adoption of amendments to the Capital Market Law.

82 Official Gazette 84/02, 138/06.

83 unauthorized use and disclosure of inside information (art. 149), manipulating prices and spreading false information (Art. 150), the reporting of false information in the prospectus and its distribution inadmissible (Art. 151), improper listing of securities (Art. 152), concealment of property (Article 153), illegal trading of securities (Art. 154).

84 Article 3 Paragraph 1 item 18 CMA.

85 When an investment firm authorized tied agent, it is fully and unconditionally responsible for all acts or omissions of a tied agent when acting on behalf of an investment company (Article 95 of the CMA).

86 Article 93 Paragraph 1 CMA.

87 See in particular Article 568th to 571st CMA.

AuthorAffiliation

Dr.. Peter Novoselec *

Sunny Roksandiş Vidlicka, Dipl. iur. **

* PhD. Peter Novoselec order. Professor of Law, University of Zagreb, retired (Chapter 1 to 6)

Suncana ** Roksandiş Vidlicka, Dipl. iur., Assistant Professor, Department of Criminal Justice School of Law, University of Zagreb (Chapter 7 and 8)

Copyright Croatian Association for Criminal Sciences 2010