Acquisition of Control Over a Company and Property Damage within the Meaning of Article 296 of the Criminal Code

Abstract

An analysis of the Supreme Court’s judgment indicates the practical implications of defining the loss of a shareholder’s control over a company as damage within the meaning of Article 296 of the Criminal Code. A change in the ownership structure may lead to a loss of control, but this does not necessarily imply that damage has been inflicted on the shareholder, since the civil law understanding of damage does not permit the conclusion that such a change itself affects the assets or liabilities of the company. In practice, it is possible to consider the difference in the value of a shareholder’s shares before and after a share capital increase as damage to property. The Supreme Court distinguishes between a situation in which there is a “dilution” of a shareholder’s holding and cases in which a shareholder loses his or her shares, which is usually the case with a voluntary redemption of shares without compensation. The ruling limits the possibility of an expansive interpretation of damage to property, which reduces the risk of minority shareholders sabotaging capital increase resolutions.