CHAPTER III THE CONCEPT
scam, is that through deception obtained an illegal advantage, provided by the victim, who works driven by the error that has led or held the middle misleading.
is characterized by fraudulent means developed in the action, which determines or strengthens the error on the victim and consequentially the supply of goods, material object of the offense.
No violence such as having in the theft, and as there is in the extortion. It is a crime of cunning, the agent often pretend behaviors and qualities, by which crime has been called "protein", by the sea god that figure changed as desired, to escape the harassment of the questions of who knew her prophetic gift.
LEGAL DESCRIPTION: It is contained in Article 246:
"scam. The obtaining illegal profit for himself or for another, inducing or maintaining error to another by means of trickery or deception, shall be punishable with two to eight years and a fine of fifty (50) one thousand (1,000) monthly legal minimum wage. "
"The same punishment shall in lottery, raffle or game, obtain advantage for himself or others, using any fraudulent means to secure a particular result."
"The penalty is imprisonment for one (1) to two (2) years and a fine of up to ten current monthly minimum wage, if the amount does not exceed ten (10) statutory monthly minimum wage. "
ELEMENTS: Integrate the following structure elements:
a) use of trickery or deceit.
b) Induction or maintenance error of the victim.
c) Obtaining illicit benefit.
d) Impairment of others.
a) trickery or deception: They are the means of committing fraud. Deceit is not telling the truth, whether in speech, thought or deed. Artificio the Latin ars, art, and facere, to do, does the plot clever or witty, so imperiously involves actions and not mere words.
These means must be capable of producing or maintaining error. Therefore, the truthfully thinking is not relevant as long as he appears to be a hoax from the word or deed.
We discuss the magnitude of this element. If you can be the simple lie or if necessary a foreign deployment in the agent's conduct.
lie on the simple verbal agreement has been reached and jurisprudential doctrine that in itself does not set the item under study. It would be a real judicial debacle it were, since it atiborrarían court with all business transactions in which the excesses liars are usually present. Everyone
read in the newspaper classified ads, offers property and vehicles used in "perfect condition", which is a liar, it does not generally leave to present certain defects that the seller knows. There is in most of these cases crime.
Since the last century there is a theory created by French authors, and called the mise en scene, that for there to be a means of cheating, lying alone is not enough but must it be accompanied by external events, that underpin the mendacity. Another argument
why we bow, called by the treatise Luis Carlos Perez of the "lie effectively," and other "elaborate lies", according to which a lie can be the deception that characterized the scam, in cases in which the history of relations between the agent and the victim, believe that it manages to make the fallacious notion.
as when a dealer sells a customer his usual good grades has not announced producing the impairment of assets and illicit profit for his favor.
we support the latter view: With the first we would fall into injustice to be criminally responsible, who act in a way that has found roots in the social or practical use, as well one who yields to the simple lie, often contribute their clumsy attitude, the consequences must support non-custodial penalty.
The second also incur, errors of law, as would leave unpunished lies outside without an escort, have been effective in the victim's assets decline, under not the clumsiness or negligence of the latter, but the confidence by the history of friendship, business, etc., exists.
b) Induction or maintenance error: The trickery or deceit must be directed to produce or maintain the error in the victim. There must be a causal determination of this element by it. In one case, in their generation, and the other in its persistence.
Mistake is a misconception or false reasoning. The first is the distorted representation of reality in a particular area, while the second is a speech in violation of logic.
In this error can be reached by persuasion agent (induction), or outside it, in which case they must act to survive (maintenance) error, rooted in the psyche of the victim, through tricks or deception necessary to the scam.
If giving the error, are given no trickery or deception, as when B pays C, believing it to, no scam, fraudulent means failure. In our law, this behavior lies in the frauds, Article 252 of the Penal Code, which states:
"Article 252. Use of error or unforeseen circumstances outside. He who appropriates property belonging to another and in whose possession any alien entered by mistake or accident, incur a prison sentence of one (1) to three (3) years. "
"The punishment shall be imprisonment of one (1) to two (2) years if the amount does not exceed ten (10) statutory monthly minimum wage."
In the scam, should determine the delivery error, as he in turn is determined by deceit or trickery. So you can say: delivered by mistake and missed by deception. There is a related or causal chain can be outlined as follows: delivery-error-deception.
c) Obtaining illicit benefit: Should the agent illegitimate financial gain. Therefore it has been understood not use cash, but the availability of good, because it is held by him.
If you understand the use as discussed in the theory of locupletatio, studying the theft, the fact that the agent did the thing, because it was given or because he was domain or any other right on it not in itself imply the existence of this element. Actually missing took advantage of it, using, or disposing of it.
Taking this theory, we would say that if someone sells an object to the deception that characterizes the scheme, determining the error in the buyer, and we fail to take advantage of that sum, because the missing, would not have offense, for not giving the item under study.
However, as has been understood juisprudencialmente doctrinal and, if he has the ability to dispose of the property, constituting the element with which the above example would have a typical structure perfect.
When the benefit received by the agent is providing a paid service, do not exhibit problem, because in fact their execution will be taking advantage of it.
should be specified and added as another difference with the theft, which can be not only material of this violation, the property, but property, and as was noted the provision of paid services.
From what follows it is not enough simply lucrandi animus, as in the theft and extortion: Impallomeni cited by Barrera Humberto Dominguez, criticized the structure of the criminal fraud in the Italian code, similar to ours, because it prevents suppression as accomplished fraud cases where the damage is done, but good, object material does not enter the field of agent availability. Quote
supporting the following case: "A man, knowing that Titius has won the lottery, the ticket's commitment to achieving and charge, for which with fireworks, convinces him that he is loser and have to pull the ticket . But Titius, deceived, rather than throw it, break it so that the scammer can not benefit from any economic or other nature "(BARRIER Dominguez, Humberto." Offences against economic wealth. Edit. Temis, Bogotá, 1963 pg. 250).
The conclusion is that there is no need that the object is actually used, but it is available to the scammer, with a real chance to enjoy it. In the above example, the case of damage to property of others, not fraud, it would have been if instead of destroying Ticio ticket boot him, leaving him with the subject at hand trickster.
d) Impairment of others: Correlated to the previous we have the prejudice of others, for the deceived or a third party. Prejudice of course, equity, according to the legally protected by all types of crimes in which the scheme is included.
may devolve on movable and immovable property, rights or economically valued work. As for rights, for example, when a person by deception and error induction, it is delivered the document that certifies an obligation to his office. Here the material object is not strictly the document, but a personal right that is lost to the detriment of the estate of the creditor with the loss of evidence. About
economically valued work, we have the cases of those providing a service estimable monetarily, qualified or not, (professional, technical, artistic, simple craft, etc..) Error under the delusion that he induced or maintained, disappointed in seeing remuneration. In Colombia we have the famous case of who posed as Ambassador of India, and spent a sybaritic days in a luxury hotel in Neiva, attended "a cuerpo de rey".
Se controvierte el caso de quien defrauda a quien le propone la comisión de un hecho delictuoso. El que acepta el encargo de matar a alguien, engañando luego al mandante haciéndole creer el cumplimiento del hecho, por lo cual recibe el dinero ofrecido.
Carrara sostiene que no hay estafa, porque aunque el hecho es sin duda criminoso, la circunstancia de que la víctima sea más execrable que quien la engañó, nos impide prostituir la sanción penal para protegerla. Agrega que de esa impunidad no podrá quejarse ningún ciudadano, porque además ha descartado los proyectos de un homicida.
Al lado de esta posición clásica, inspirada en la función restoration of the legal system should have the penalty, we built on the positivist principle of social protection for those who do such an act should be punished, by the manifest danger and social maladjustment, put clear by the economic damage. Modern dogmatic
has to resolve this issue, finding liability on the fraudster, it meets the elements that structure the type of scam, but there are causes of exclusion of illegality or guilt.
course, in any of three positions for criminal responsibility disappointed, for the crime of murder, it began the execution of the event, through the agreement with an alleged hit man, responsible course in the degree of effort.
Our view is that there is no crime of fraud, because the law can not prosecute and protect the same event at a time. Indeed, it can not pursue the killer and at the same time, protect the victim of a scam, aimed at the killing itself. There is a contradiction on the issue.
That trickster is free of responsibility does not imply a lack of law and impunity disadvantage, facing the embarrassing dilemma of a convention protecting a criminal penalty of a lot more serious than the offense is to blame.
The basis of the conclusion refusal of the scheme, within the theory and structure of crime, lies at the level of the legal, to the extent that the law can not unlawful preaching a fact that rather than allow the implementation of a more serious crime This frustrated. There is no illegality, not by way of a ground of justification, but by way of illegality positively considered, not having legally meritorious injury by law, inasmuch as the agreement that led to the scam, has a unlawful. That is not the type of property right protection as economic assets, in a well is intended to commit a crime, leaves the sphere of protection jurídica, y se convierte al contrario, en objeto de persecución judicial (comiso: Art. 67 del Código de Procedimiento Penal).
Aquí se puede asociar el caso, de quien es estafado con relación a la venta de una sustancia de porte prohibido (cocaína, marihuana, heroína, etc.). Quien bajo ese negocio, recibe un alijo que no es más que harina de maíz, no podría demandar ante los tribunales, la burla de su derecho patrimonial, y que le devolvieran lo que pagó por ello. Hay una causa ilícita, y ello excluye la configuración del delito de estafa. Con mayor razón sucede para el estafado con relación al encargo de ejecutar un homicidio.
Para ilustrar el concepto of unlawful, see Section 1524 of the Civil Code in clauses 2 ° and 3 °:
"It is because the reason which leads to the act or contract, and unlawful because prohibited by law, or contrary to morality or public order. "
"Thus, the promise to give something in return for a debt that there is no cause, and promise to give something in return for a crime or an act immoral, has an unlawful".
Check Fraud: Conflicts of rules in fraudulent conduct of checks, there have been initially took to the crimes of "fraud by check" and "scam." This concurrence of implementation has been resolved with the clause of subsidiarity which brings 248 of the C. Art P, which is a reproduction of 357 of the Code of 1980. This was overcome an old and dense doctrinal and jurisprudential debate that lasted until the repeal of Decree 1135 of 1970. Fraudulent usually made by check may be typecast into the offense of Fraud, and this is so, because thanks to the fraudulent act that relies on the security, the benefit is determined and the corresponding damage illegal alien economic content. Once defined
this location rules, however usually appear a second competition of standards, the "scam" and "forgery." This can happen when the action taken on the check, you can set one of the behaviors of "misrepresentation" that says the third chapter of title nine, second book of the Penal Code. The jurisprudential trend has been to accept the competition.
However, recent case the Court took away from that solution, cases of fraud committed by what is known as "creation of the document" without being the genuine. And it argued that "The check, in such circumstances is a formal document, but really can not give evidentiary value against the real account holder is no documentary evidence because it relied upon, nor ever will be paid by the drawee, or unenforceable to any of them "(Judgement of November 10, 1987). Accordingly, the Court dismissed the configuration of the crime of forgery.
This view was not shared by all members of the Criminal Division of that Corporation. Two judges saved the vote by invoking the line of decisions of the competition brought by the Court, in its essential part defended well, "... for criminal purposes, should be perceived as real or genuine document, which has certainty about the legality of its origin and its author, as if he subscribes to and supports are not authorized to do so, simply document the appearance of authenticity , which uses precisely the liar to deceive and affect the security of the documentary evidence. "
FRAUD LOTTERY OR RAFFLE GAME: The second paragraph of Article 246 brings an express reference to these random events, which have had significant usage in crime .
The difference with the basic description of the fraud made in the first paragraph of that article, is the reference to the "... any fraudulent means ...", which is more generic than "trickery or deceit", eliminating the problem discussed here to study this element of artifice and deception which could set that element, and what not.
Within media used for these types of scams, there are those of using magnets or other devices that allow discretion to manipulate the aircraft wheels that give the winning number. When the bet is related to raffles or games of chance, fraudulent means may be less elaborate. It is for this reason that the legislature intended to cover all fraudulent means, as yet there is also a public trust in them, generally endorsed the state must provide them. SCAMS
GROUP: Important is to modern criminal law to solve the problem that in practice are considering generic and deceptive behavior directed to the public indefinitely, and which are frauds property of people who access the fraudulent offer and the corresponding benefit of the active subject.
Unlike conventional scam, with an individual taxpayer and determined, artifice or deception is directed to the community, composed of persons unknown to the agent, which will become taxpayers, those who accept the suggestion defraudatoria not being able to determine in practice the identity of many of them.
These cases are creating great alarm. Savers financial fraud, fraud in housing need by builders who collect advance and then with the juicy raise revenues, misleading consumers with the sale of food, medicinal or other nature that may not have the quality, quantity, weight or measure announced, the fraudulent alteration of measuring or counting devices (eg petrol stations) courses or products sold through newspaper classifieds that do not deliver the announcement after receiving the money order, etc.
modalities have emerged, and are to appear, could not be listed exhaustively. They will tow technical innovations, the commercial and general customs of society, or in short, of reality, as well as the inventiveness that stands on it.
Examples of this type of crime massive are the financial frauds in our country, that "autopréstamos, stock market, concealment of assets, etc. have damaged hundreds of millions of dollars to depositors. And what about the developments repeated instances of "pirates" and even recognized, speculating on the great need for housing by the lower classes by offering plots of land or homes, which need not be delivered, or delivered in conditions inferior to those negotiated among which many times is the lack of development. The alteration of staples such as milk or medicine (Ministry of Health has announced a massive adulteration of drugs in the Colombian market, etc.).
These behaviors as well as damage the economic wealth, but also affect other legal rights such as life and personal integrity, public trust, public administration and justice, however they are a great source of administrative corruption. With regard to economic assets, which affect an individual order, but also and primarily collective. Hence the criminalization of these behaviors can stay in the crimes against "social economic order", or priority over the "economic assets" of individual court, but it is important to raise the issue here as in judicial practice, the devices title X Book II of the Criminal Code (Offences against the economic and social order) are not always sufficient to solve the cases, concurrent or framework but only in the economic crimes against property, mainly in the scam.
While the legislature believes appropriate criminal types, as (magnitude and effectiveness of the penalty) and quantity (coverage), the application that we give to those in our new criminal law implies in such cases the consideration of crimes against economic wealth, and most importantly, the crime of fraud, next to the figures in the title X mentioned.
defraud an entire community placing a food market with deterioration in its quality, has a comparatively low penalty of one to three years in prison, while the conventional scam from two to eight years. While the financial penalty of Article 299 ("alteration and modification of quality, quantity, weight or measure") has been considerably increased, going from 50 to 1,000 current monthly minimum wage, "the deprivation of liberty should not be below that of a crime whose only offense is individual. The conclusion is that wholesale crime is less serious.
The imbalance is even greater, in relation to the new Article 300 offense of "misleading offer products and services." There is only established financial penalty. Accordingly, cheating on a massive scale, offering products that do not have the quality, quantity, part or the weight, volume and suitability announced, is far less serious that the "Chilean package" of little value. Illustrate the true gravity of those crimes with an example: the sale of milk for babies, less than the announced amount, leaving a hefty profit for the seller, and that disappoints in a few grams to each of the thousands of consumers; will say that those few grams (10 to 30 grams in a kilo), they have higher priorities, which could well serve to illustrate the case for the theory of insignificance. However, Infant mortality rates due to malnutrition in countries like ours, are there as a witness that such deceptions they can have serious repercussions. For poor families, those grams weekly swiped their infants, milk, medicines, or staples, can mean the disease, psycho-physical development abnormal or death itself.
Saavedra Rojas, shows that this differential legal treatment of the criminally prohibited conduct affecting individual rights and those affecting the society from the economic point of view, establishing the respective parallel comparison of the criminal in question, in an orderly manner and criticism. (Saavedra Rojas, Edgar. "Difencial legislative treatment of behaviors that affect individual v social rights", Journal of Criminal Bar Association of the Valley, No. 3).
But there are behaviors of this growing economic crime to offer serious difficulties typical framework, resulting in a dangerous impunity, which gives encouragement to the mad rush for money. To this we must add the effective pressure on the judiciary, the powerful print distorting the law enforcement. However
legislative deficiencies noted, we believe that the current law enforcement can pick interpretively significant social reaction regarding the conduct under investigation may be located within existing economic criminal types, using the scale punitive dose the severity of each event and recognizing that imposing the financial penalty may in large part, have a deterrent effect, taking advantage at last legislature chose a criterion amount of the fine adjustable to the devaluation of the currency. This sentence should be correlated with the amount of the violation, not to become a cost that could be budgeted in advance, and endured as an investment, it takes all of its deterrent or secondary prevention of crime.
The CP Section 39 provides that the fine will be assessed taking into account the damage caused by the infringement, the intensity of guilt, the value of the crime or the benefit of the report, the economic situation of the offender, and other circumstances that indicate its ability to pay.
The culmination of this chapter, states that the reference has been doing up to the "white collar crime, that crime, reported in the middle of last century by American sociologists and criminologists Democrats and critics of the old and new continent, as a form generally excluded from traditional criminal codes, which in the best of cases involved some typing, effective merely symbolic, it corresponded to descriptions impractical, except that in reality distortion suffered the influences of the powerful can exert on the state apparatus.
From there to here, some spaces have been won, so that justice is not justice class so that the wisdom he meant in Colombia, with the aphorism that "the law is for the poncho." While there should be no illusions, because the proceedings against white collar criminals, but are just the tip of the iceberg, a public and private corruption, greedy and ruthless, and political corruption, impunity remains such shields, that prevent the phenomenon of corruption is no longer endemic structural. SPECIFIC
Aggravating Circumstances: The Code of 2000 has provided a system of aggravating the crime of fraud. Doubling the minimum sentence of imprisonment, the causal relationship 3 Section 247, namely:
"The penalty prescribed in the preceding article shall be four (4) to eight (8) years when:
1. The fraudulent means used is relevant to social housing.
2. The illegal profit obtained by the person without being a participant in a kidnapping or extortion, at the same, induces or maintains another in error.
3. It real or simulated influences invoked to excuse or to obtain a public benefit in case it is dealing or has to deal. "
No need to dwell on the reasons for the aggravation. 1 °) greater protection to be given to social housing, basic good of the family and the person, with limited resources. 2 °) The increase in anxiety for those with the crime of kidnapping or extortion, or both , for whom "fishing in troubled waters, posing as those who have kidnapped the person or organization able to conduct extortion. In these cases, you can not incriminate the trickster kidnapper or extortionist, but a swindler, and this conduct is guilty of greater density, to the extent shamefully taking advantage of a situation of extreme anguish and suffering of victims. 3 °) When you join the deceptive maneuver invoking influences, real or simulated, in order to profit from a public servant who knows of a case or has to deal, which finally end the power broker to achieve their fraud. In this case, there is also a commitment to public service, and may not properly invoked "influence peddling" (Art. 411) as a crime against public administration, As this behavior requires an active subject of "public servant."
0 comments:
Post a Comment