Criminal Liability for Negligent Accountancy

Abstract

This article presents the conception of negligent account management, analyses the rules of the criminal act that govern criminal liability for negligent account management, by focussing on the form of guilt and the problem of its content. The plenary session’s conclusion that the two offences – failure to administer bookkeeping and failure to protect the bookkeeping documents – can be committed both intentionally and negligently is disputed in this article.
The adoption of the new Criminal Code in 2000, setting the form of guilt and its content in criminal cases for negligent account management, posed no significant problems – the court practice and legal literature followed the attitude that this crime could be committed only negligently. According to Article 16(4) of the Criminal Code 2000, a person is punished for negligent commission of a crime or a misdemeanour only in individual cases stipulated in the Special Part of the Criminal Code. The problem was that no “individual case” was foreseen in Article 223 of the Criminal Code that imposed liability for negligent bookkeeping. This created preconditions for deviating from pre-existing case-law under which this crime could be qualified as negligent. Only in 2009 the Criminal Division of the Lithuanian Supreme Court concluded in its plenary session that Article 223 of the Criminal Code provided liability for criminal record-keeping and accounting only if committed negligently as a form of guilt, and other activities pursuant to this Article might be committed intentionally and recklessly. The plenary session identified a loophole of criminal law and created preconditions for the formation of uniform court practice. Only the legislator can remove the loophole of criminal law identified by the Supreme Court of Lithuania.
The author states that all of the acts named in Article 223 of the Criminal Code can be committed negligently and suggests applying the rule contained in Article 16(4) of the Criminal Code to Article 223 of the Criminal Code. All of these findings are based on historical, grammatical and logical interpretation of the “neglect” concept and the analysis of Articles 222 and 223 of the Criminal Code.