The offense of violating the legal provisions regarding the conflict of interests in the case of companies with legal personality
DOI:
https://doi.org/10.55516/ijlso.v3i1.161Keywords:
conflict of interests, company with legal personality, administrator, favoring certain persons.Abstract
At the conflict of interests designates, in the general sense, that situation in which, when making a decision or participating in the deliberation process for making a decision, a person has a personal patrimonial interest that may have influence regarding the objective fulfillment of the duties assigned to him according to the legislation in force.
Both in European and domestic legislation, when the conflict of interests is regulated, a distinction is made between persons exercising public dignities and offices and persons exercising their duties within companies with legal personality in the private sector. Of course, in the case of persons who exercise certain dignities or public offices, the principle of the supremacy of the public interest must be respected, which is why, in the case of these persons, the legal regime of the conflict of interests is much more restrictive, unlike the case of persons who carry out their activity in the private sector, in which case they receive the interest of the legal entity within which they exercise their duties. In other words, a distinction must be made between conflict of interests in the public domain and conflict of interests in the private domain.
Considering the particularities and special importance of the legal regime regarding the conflict of interests in the private field, this paper proposes a detailed analysis of the way in which criminal protection is provided to the legal regime regarding the conflict of interests in the case of companies with legal personality. A clarification is made of the notions of incompatibility, indignity and conflict of interests, by highlighting the common characteristics and aspects that differentiate these notions, highlighting the particularities of the way of criminalizing the conflict of interests in the domestic legislation.
References
Dicționarul explicativ al limbii române, The Romanian Academy, Universul Juridic Publishing House, Bucharest, 2012;
The guide can be accessed at: https://www.oecd.org/gov/ethics/2957377.pdf;
Remus Jurj-Tudoran, “Infracțiunea de conflict de interese – teorie și practică judiciară”, in „Revista Pro Lege” Magazine, accessed on: 28.10.2023 at: http://revistaprolege.ro/infractiunea-de-conflict-de-interese-teorie-si-practica-judiciara/;
By decision no. 1/2015 The High Court of Cassation and Justice – The judicial panel for the settlement of legal issues in civil matters established that the provisions of Article 308 of the Criminal Code represent a mitigated version of the offense of embezzlement. However, among the offenses referred to in Article 308 at the time of the pronouncement of this decision, there was also Article 301 of the Criminal Code, which regulated the offense of conflict of interests;
Valerian Cioclei, Drept penal. Partea specială II. Curs tematic, C.H. Beck Publishing House, Bucharest, 2016;
I. Schiau, T. Prescure, Legea companiilor comerciale. Analize și comentarii pe articole. Hamangiu Publishing House, Bucharest, 2007;
Alexandru Boroi (coord.), Mirela Gorunescu, Ionuț Andrei Barbu, Bogdan Vîrjan, Iulia-Elena Nistor, Dreptul penal al afacerilor, 8th Ed., CH Beck Publishing House, Bucharest, 2023.
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