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Criminal liability for fictitious insolvency


Author: Lebedinschi Adrian
Degree:doctor of law
Speciality: 12.00.08 - Criminal Law (with specification: Criminal Law, Criminology, Criminal Procedure Law, Criminalistics, Judicial Expertise, Executional Law; Theory of The Operative - Investigation Activity)
Year:2018
Scientific adviser: Viorel Berliba
doctor habilitat, associate professor (docent), Academy "Stefan cel Mare" of Ministry of Internal Affaires
Institution: Free International University of Moldova

Status

The thesis was presented on the 29 November, 2018
Approved by NCAA on the 23 November, 2018

Keywords

insolvency, intentional insolvency, fictious insolvency, commercial insolvency, bankruptcy, simple bankruptcy, fraudulent bankruptcy, state of payments cessation, incapacity for payment, creditor, entrepreneurial activity, damages caused, large proportions.

Summary

The thesis includes: annotations, a list of abbreviations, an introduction, three chapters, general conclusions and recommendations, the bibliography in 213 titles, 5 annexes, 1 figure, 7 tables, 162 basic text pages. The results obtained are published in 7 scientific papers.

Field of study. The scientific investigations carried out are based on the field of special criminal law, although a complex and thorough interpretation of the normative content of the crime is not possible without the analysis of the regulatory field of the insolvency institution - the field of commercial law.

The aim of the PhD thesis was to substantiate the criminal liability for fictitious insolvency based on prescribed normative modalities, avoiding some unfavorable extensive interpretations and creating a typical framework for delimiting fictitious insolvency from other crimes.

The objectives: the identification and evaluation of the opinions expressed in the specialized literature in the Republic of Moldova and other states regarding the regulation of the insolvency institution (bankruptcy); the analysis and interpretion of the scientific materials elaborated on the subject of the PhD thesis, by capitalizing on the degree of investigation of this subject and shaping the initial level and the effects of the researches carried out; the analysis of the normative acts regulating the insolvency institution - as a commercial law institution; the interpretation of normative acts adopted in different states from the perspective of comparative rules; the investigation of the limits of setting up a normative system on insolvency in Moldova; the reasoning and scientific substantiation of the regulation of the criminal liability for fraudulent bankruptcy; the complex investigation of the notions of insolvency, bankruptcy, from a textual and normative point of view; the analysis and the interpretation of the pre-existing signs of the fictitious insolvency crime; the determination of determination procedures of signs that characterize the constitutive content of the fictitious insolvency crime; the clarification of some milestones for distinguishing the fictitious insolvency crime from other similar offenses; forwarding, argumenting and promoting in the future recommendations on the normative determination of methods of normative manifestation of the fictitious insolvency offense.

The scientific novelty and the originality of the obtained results consists of the following scientific results: ● the implications of the criminal law on the liability for the insolvency-related actions are based on certain particularities, defining features and solutions stemming from the insolvency regulation in commercial matters; ● not any insolvency presumes a prerequisite for the existence of the crime (the insolvency is not related to the system of criminal law), but if a criminal action on insolvency is initiated, then the insolvency institution is to be examined in some cases, as a situation -premise – a pre-existing sign of the crime; ● the lack of criminal convictions in Moldova in the complex field of insolvencies is dictated by certain normative inconsistencies; ● the mere refusal of a payment which the bona fide debtor found to be well founded could not and can not constitute sufficient evidence for the cessation of payments; ● The approach of the material element in the form of forgery can not be conceived in terms of competition between fictitious and fake insolvency.

The important scientific problemsolved was the elaboration of an efficient legal mechanism regarding the criminal liability for the fake (fraudulent) insolvency crime, which will contribute to the efficiency of the system of awarding certain prejudicial acts to the category of crimes of this kind, in order to boost the system of its application in the framework of the violation of incidental social relationships.

The theoretical importance and applicative value of the work. The theoretical significance lies in the certainty of the documents governing the complicated field of insolvency, from the analysis of some valuable opinions expressed in relation to this institution of commercial law. The applicative value lies in the fact that the obtained results can easily be applied in the process of subsequent scientific research, in the didactic process, in the elaboration of some amendments to the criminal law.

The implementation of scientific results. The conclusions and recommendations that form the scientific results of the scientific investigations have been reflected in 7 scientific papers published in scientific journals, including the participation in international scientific and practical conferences (The International Scientific and Practical Conference „Premises of the improvement of the National Legislation and Adjustment to the standards of the European Union” - Chisinau: ICJP of the AŞM, ICEŞD, 2016).