Trolöshet mot huvudman på finansmarknaderna. Ekonomisk brottslighet och den straffrättsliga bedömningen av komplexa finansiella upplägg

Sammanfattning: The criminal law is an ancient system for expressing and enforcing different values. Its structure and language are primarily tailored for traditional, visible, physical offences. It is therefore prone to be led astray by the norms and intricate social patterns of modern society. One field where it is oftentimes difficult for the criminal law to navigate is that of white-collar or economic crime. This thesis investigates the criminal law’s ability to handle economic crimes committed on financial markets and through the use of complex financial instruments or arrangements. The thesis centers on the Swedish crime of abuse of trust and on how it should be determined if a financial arrangement constitutes trust abuse. Legal dogmatics is used as a starting point, but since the acts in question differ in relevant ways from the kinds of acts that the crime was developed for, the authoritative legal sources provide only limited guidance. To answer the research questions, I therefore rely upon economic crime research to analyze judgements from the lower courts. Through the analysis two different models for assessing the acts are identified, which are interpreted and evaluated through the lens of economic crime research. The analysis indicates that only one of the models is able to account for the complex financial market context and handle the ways in which the acts challenge some of the criminal law’s fundamental assumptions. According to this model, financial arrangements must be described as chains of events which are connected in space and time through the intent or motive of the perpetrator. The acts then constitute trust abuse if they can be described as a criminal scheme which lacks legitimate purpose in relation to the principal’s interests. At the same time, the model extends the criminalization in a way that can be criticized from a rule of law perspective.