Criminal Liability for Unlawful Engagement in Economic, Commercial, Financial or Professional Activities: In Search of Optimal Criteria

Abstract

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not include particular abuses occurring in legal business.
The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity.
The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law.