Being an active subject of the offence of embezzlement in the case of the de facto administrator of an association of owners or tenants and of the person who carries out services for the association of owners or tenants, under a service contract. Opinion on the question of law that led to the delivery of HP Decision No. 31/2022 in criminal matters

In AUBD – Legal Forum nr. 1/2022 was published the article entitled "The quality of active subject of the crime of embezzlement in the case of the de facto administrator of an association of owners or tenants and of the person who carries out services for the association of owners or tenants, on the basis of a service contract. Opinion on the question of law that led to the delivery of HP Decision No. 31/2022 in criminal matters', drafted by lawyer and Associate Professor Andra-RoxanaTrandafir, PhD.

Starting from two questions addressed to the High Court of Cassation and Justice by the Craiova Court of Appeal in the procedure provided by art. 475 et seq. C.pr.pen., the article analyzes the way of interpretation and application of the provisions of art. 295 para. (1) in relation to Art. 308 C.pen., in order to establish whether the de facto administrator of an association of owners or tenants may be an active subject of the offence of embezzlement, respectively whether a person who carries out services for the association of owners or tenants, on the basis of a service contract, can be considered a person exercising, permanently or temporarily, an assignment of any kind within the association within the meaning of Article 308 C.pen. Synthetically, the article mentions that the de facto administrator of an association of owners or tenants, in the sense explained in the material, can be an active subject of the crime of embezzlement, and the possibility that a person is an active subject of the crime of embezzlement does not depend on the nature of the contract underlying the relations with the association of owners or tenants, if that person also has administration or management duties in respect of sums of money or other property belonging to that association which may be qualified as service relations.