Summary

As a result of the economic turmoil of the past few years, judicial practice has several times come across a situation in which a legal person related to the commission of offences or a legal person committing offences was led by a person who had not been entered in the commercial register as a member of the management board. Such informal or actual managers of companies are persons who are not officially members of the management board but in fact direct the company either side by side with an official member of the management board or completely on their own (while the role of the official member of the management board is indeed only formal).

The institute of an actual manager of a company known in penal law raises questions about the prohibition on analogies and the principle of legality. In addition to theoretical issues, a question related to special features has rightly emerged in judicial practice: for example, whether a factual manager of a company could be held liable for tax frauds that require special features if officially only the person entered in the register as a member of the management board has the obligation to declare taxes. The above issues have created a problem of whether it would be more appropriate to approve the liability of a manager of the company as a principal offender or as an accomplice.

Using the judicial practice of the Supreme Court and German legal literature, the author provides some (dogmatic) guidelines that could be used in furnishing the notion of an actual manager of a company in the future.