Compliance of criminal bankruptcy legal regulation with the principle of ultima ratio: national and international aspects

  • Rasa Volungeviciene
Keywords: Criminal bankruptcy, ultima ratio.

Abstract

This article is specifically concerned with the situation that the legislator in Lithuania has established both civil and criminal liability for intentional bankruptcy of a person due to the intentional conduct and there is a question of the  bankruptcy criminalisation compliance with the ultima ratio principle.

The aim of this article is to analyse whether the legislative regulation of criminal bankruptcy in Lithuania does not contradict principle ultima ratio as the last resort, the same as to evaluate the criminal liability in accordance with article 209 of the Criminal code of Lithuania for a bad corporate governance how it is defined by the national and international law.

Article 209 of the Lithuanian Criminal Code provides criminal liability for a person who deliberately manages a company in bad way, leading to its bankruptcy and by this action or inaction causes substantial damage to creditors. The legislator has foreseen the analogues criteria for intentional bankruptcy, as it is provided in Lithuanian Bankruptcy Code article No. 20. The big damage criteria (150 MGL), for at least two creditors does not reflect real damage to the state economy and business helps to avoid criminal liability when the damage is made for only one person. Notwithstanding to the declining volume of the assets in the companies going to the bankruptcy, in the same way proportionally increasing the amount of the damage made to the creditors, the civil law instruments do not guarantee the safeguard for the creditors interests, which, according the World bank reports, in Lithuania is one of the worst regulated in European Union. For that reason, by invoking the best experience and comparative approach  of different legal systems- France and Germany, can be held, that the criminalisation of intentional activities in insolvency and bankruptcy cases result the positive effects to the efficiency of bankruptcy regulation. In accordance with ultima ratio principle was found that the internal criteria for the principle content are: the dangerousness of the act, widespread of the act; it also must be evaluated whether criminal law is used as the as resort for the protection of legal goods and should be answered whether this object can be regulated by the measures of criminal law.

The law of criminal bankruptcy foresees the criminal responsibility  for damage of the goods which are protected by the  constitution - the property (interests of the creditors), the same way as economics and business order, because the protection of these goods cannot be guaranteed only by the means of civil law. On the basis on these criteria can be stated, that the criminal responsibility is the proportionate instrument – it means, that the criminalization of the bankruptcy does not contradict to the principle of ultima ratio.

Published
2019-07-15
Section
ARTICLES