Ratio legis obscurus est ‒ Perspective on the malversation of public tenders

Abstract

The legal provisions in the special part of the Criminal Code aim to protect various social values. Although, in general, crimes have a legal object that can be inferred from the interpretation of the legal text, together with the placement of the crime within the titles or chapters, in the case of malversation of public tenders, the rationale of criminalisation is not so clear.

The article focuses on explaining the extension of the objective side of the crime, which is of real legal practice interest. In fact, it is necessary to analyse the applicability of this crime: either it concerns only public tenders, as specific procedures carried out under special laws; or this phrase conceals a rich content, which leads to the application of the legal provision to public procurement procedures as well, with which, after all, it shares common procedural aspects.

In my scientific approach, I will argue that, although free competition in public tenders is the protected social value, which should also determine the applicability of the crime, the wording chosen by the legislator in the case of malversation of public tenders raises some issues, an aspect that is also highlighted by the small number of court rulings on the matter.