Entities Entitled to File A Request for Prosecution of the Criminal Offence of Punishable Mismanagement Without Damage – Assessment of the Amendment to Article 296 § 4A of the Penal Code

Abstract This article analyses the amendment to Article 296 § 4a of the Penal Code, which broadened the circle of entities that may file a request for prosecution of the criminal offence of punishable mismanagement without damage. Prior to the amendment, only the aggrieved party had such a right, but now it is also available to a partner, shareholder, or stockholder of the aggrieved company or a member of the aggrieved cooperative. The purpose of this analysis is to assess whether this amendment was actually necessary and whether its introduction aligns with the principle of subsidiarity in criminal law. In the author’s opinion, there is insufficient justification for this amendment, and its introduction appears to be the result of a faulty identification of the reasons for the rare application of the provision sanctioning the criminal offence of mismanagement without damage. The legislator has identified the limited circle of persons who may file a request for prosecution as the primary reason for its lack of practical application. However, in fact, the lack of application of this provision lies in its construction, which significantly limits the range of factual circumstances that can be qualified under its statutory elements. Furthermore, the introduced solution does not seem reconcilable with the principle of subsidiarity in criminal law, as it constitutes excessive interference of criminal law in corporate relations, increasing the risk of abuse of this institution.