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The criminal offense of abuse of position or trust in business activity and the limits of free economic initiative
Zlatan Dežman, 2017, original scientific article

Abstract: The criminal offense of abuse of position or trust in business activity within the meaning of the Slovenian Criminal Code is the most common criminal offense against the economy. To adequately assess such an offense it is essential to clarify at the very beginning of the criminal proceedings that all preliminary questions have their origin in the field of civil, corporative and commercial law. In other words, the difficulty of problem solving for such cases in later stages of the process only intensifies, as the decision-making process becomes more and more difficult and can cause delays. And even in cases where the facts are undisputed, the whole issue concentrates primarily around the dispute regarding the issue of material criminal law. The purpose of this paper is to present the above mentioned issues, firstly from a more theoretical perspective on freedom of economic (business) initiative in a postmodern era, followed by a presentation of the criminal law subsystem dealing also with phenomena from the economic subsystem, and lastly by a presentation of the Slovenian Criminal Code in regards to prosecution and adjudication of economic crimes and its difficulties, specifically by using the example of the above mentioned offense.
Keywords: free economic initiative, criminal offense of abuse of position or trust in business activity, standard of good businessman, blanket criminal offense, factual questions, legal questions, legal description of the offense
Published: 02.08.2018; Views: 367; Downloads: 38
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3.
Comparison of and demarcation between selected economic minor offences and economic criminal offences
Bojan Geršak, Borut Bratina, Andrej Srakar, 2015, original scientific article

Abstract: Purpose: In the article, we are discussing demarcations between selected economic minor offences and selected economic criminal offences: Fraud in Securities Trading; Abuse of Insider Information; Disclosure and Unauthorised Acquisition of Trade Secrets. By now, this topic has been given virtually no attention in legal literature. Criminal law theory has mainly addressed only the question of which criteria to use in order to recognise criminal offences amongst all unlawful actions, while on the other hand, law of minor offences has generally focused strictly on less serious unlawful actions. However, in practice, a certain action can sometimes correspond to the definition of both a criminal offence and a minor offence. Consequently, it is of the essence that the statutory elements of a particular unlawful action are precisely defined and clearly demarcated. Only this can ensure legal certainty that should be guaranteed to everyone already on the basis of the Constitution of the Republic of Slovenia. A problem arises if the statutory elements of a criminal offence and a minor offence completely overlap, which leads to legal uncertainty. Design/Methods/Approach: The research is based on a quantitative investigation in the course of which we conducted a survey in order to test our assumption. First, we used basic one sided t tests on the data from section 1 questions to try our general assumption. Afterwards, we designed three sets of factors using factor analysis in order to use them on questions from sections 2–6, 7 and 8. In the last part, we took all the designed variables and some other basic information on respondents and used them in regression models for analysis of factors that affect the opinion on adequacy of Slovenian legislation regarding sanctioning and prosecution of economic crime. Findings: With the research, we wished to obtain new knowledge on the adequate demarcation between selected economic minor offences and selected criminal offences. In practice, it is material that statutory elements of a particular unlawful action are clearly defined. On the basis of our findings we propose elimination of legal vacuum in which the chosen legal articles for minor economic offences and criminal offences overlap. Research Limitations / Implications: Limitations of the present article mostly relate to the availability of data and the willingness of state agencies for cooperation in the research. This relates to the quality of primary and secondary data, particularly to the issues related with consistency in data collection and data accuracy (unwillingness of the respondents to complete the survey and the problems of time and sectorial consistency in the definitions of individual statistical variables). Practical Implications: Results of the study can provide recommendations for the consequent changes in the studied legislation and clearer demarcation of legal articles on the chosen economic and criminal offences with the purpose of strengthening of respective legal protection. Namely, this is the only way to ensure legal certainty that should be guaranteed to everyone on the basis of the Constitution of the Republic of Slovenia. Originality/Value: Value of this article is in the empirical demonstration and normative arrangement of a specific field of law, i.e., the legislation in the field of sanctioning and prosecution of economic crime.
Keywords: economic criminal offences, economic minor offences, demarcation, legal certainty, unlawful actions
Published: 16.04.2020; Views: 81; Downloads: 7
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