CHAPTER IV BY CHEQUE FRAUD
GENERAL: In the process of criminalization of check writing devoid transpires in the care of a specific socio-economic interest: the commercial sector or distribution of products and services whose demand for a more effective and exemplary protection of their claims has been at the core of that process. More than a defense of the legal proceedings set forth in the law-making and in the memoranda, or recognized in case law or argument texts doctrine, that claim is determined that such criminalization has fundamentally driven. Not so much the protection of a diffuse public trust, that almost no one professes, or an individual's economic assets, saved enough to criminalize a wide range of that genre, or the same trade as a general phenomenon, whose prosperity depends more on the background of structural factors that result in real purchasing capacity of partners, but the specific guarantee of a critical mass of commercial loans.
Before the criminalization special checks, fraudulent conduct committed by those securities were covered by the criminal laws of cheating, forgery, etc., provided they meet the constituent elements of each figure, not very difficult scenario when you consider the generally open as they have developed these types of crimes. Even there tax penalties for those who, contrary to the original historical meaning of the check as payment, use it as a credit instrument, thereby avoiding the fees for such transactions are imposed on other documents such as bills of exchange. But when the bill reached widespread use, and it was not only as a means of payment, but credit, ensuing criminalization. A period running roughly between the middle of last century and the beginning of the past, which is not the safe release of suppressed overdrawn check, and which on the contrary the legislature and the banks were careful not to discourage the use of checks not threatening evil use their understanding could be accidental or negligent, they entered a phase of drastic penal repression was aimed at strengthening the role of credit check. During this first period the process of raising money is made largely through the accounts, granted in a simple and less deterring possible, with a clear incitement to the use of propaganda as a means of credit check.
With such an attitude was not exclusively endorse the check as payment. That role already fulfilled the traditional criminal devices, next to the legislation of private law. If payment by check was frustrated by the blocking desprovisión or unjustified, and by that act had been dispossessed of any economic good to a person, case law and the universal doctrine that fact came together to qualify as a scam, and, given the case, in conjunction with other crimes such as forgery, for example. Hence the warning most special penalty rules checks, subject to the alternative of them in relation to crimes of greater penalty, when not directly referring to the scam.
If issued the check had not been deprived by delivery given any consideration, or when canceling a correlative obligation to a consideration already received, they went to work in private law rules, including regulating commercial change action. In these cases there was no financial loss. The obligation sought to remove was still standing, and before, on the contrary, the creditor now had a longer document its existence, which, on the other hand, could be more useful to the recovery of the loans will that had originally
When entering defined as the mere delict Short issue, not addressed in any manner to the actual event or potential to cause damage. It seeks payment on the check at all costs. No matter the nature of business causal, the title to back the transaction, the intended purpose, and, finally, any other circumstance, to the extent that the same issue post-dated check or delivered as collateral coverage was under criminal legislation. Thus we find the formulas: "in any capacity" of Decree 1135 of 1970 in Colombia, "by any concept of" the Argentine Penal Code and Ecuador, and "with any purpose "of the English legislation.
The scope of criminalization cover reaches the point of misconduct, either by the jurisprudential development of a type of strict liability does not distinguish reckless or negligent conduct of many account holders of not have adequate control of the state of your bank account, checking the respective balances and the effectiveness of the checks entered in his favor, and proceeded to turn on flawed calculations, or by the inclusion of the same wrongful conduct in criminal catalogs. Even can be found in the Panamanian Criminal Code a provision to this effect:
"who recklessly or negligently yourself a check without sufficient funds to the drawee to cover it, shall be punished with fifty to seventy-five day fine. If the drawer cancels the value of the check by the deadline set in Article 281 The penalty is twenty to forty days' fine. "
This criminalization process, begun at the dawn of this century, shows a rising trend, increasing the number of behaviors or modalities criminalized, the enhancement of sentences, making more and more formalistic jurisprudence, etc. From there the greatest change in the legislation compared with the joint criminal policy. While a code change to another occurred in a period of forty years, the criminal law reforms suffered checking every ten or fifteen. When the criminal legal positivism affects the regulatory systems, the crimes of issuing checks in serving discovered philosophy, giving fuel to the clearest manifestations of strict liability with the inclusion in the criminal definition of presumptions of bad faith or fraud, or enshrining judicial practice summary procedures mere finding of non-payment of negotiable instrument by the bank desprovisión. It is rare to find such provisions in the wave of statutes or laws of "vagabonds or rogues, or the also called" dangerous or antisocial conduct. "
recovering criminal interventionism and spaces that humanity seemed to have left behind, after long and costly political battles, as when he won the abolition of imprisonment for debt, incorporating such an achievement for most of the constitutions modern. This going back, again allowing closure of the dispossessed by cessation of payments. A lack of assets to support their claims, were their bodies and spirits. Arrest warrants were the times of "civil payment orders', with the effectiveness of criminal terror. While there were and are other forms of appropriate guarantees (mortgage, pledge, etc..), The use of the check is favored in massive trade, and with respect to people whose lack of resources prevented the delivery of those guarantees. The Bank contributed to this helmet with its advertising to attract ("signer c'est payer" said a French propaganda), coupled with irresponsible grant accounts. All within a circle happy consumer society, driving out to the lost sheep ("bad payers"), segregating in prison. A "power mode" which aims to consume now and pay later proposition full of charm, lures liars, cheats subliminal, "special effects, sales techniques and concealment of strong punitive response if you do not have the means to pay. A whole generation mechanism of deviance, stigmatization of vast sectors of the population, whose only brush with the law was to issue an occasional check. Marginalized role of criminal law, implemented by the prison, designed to mark those who agreed to play the consumer society, losing his rhythm, or what's worse, those who were forced by their situation of misery to participate in that game with the resignation their fate.
A party is not negligible in the modern prison population has been provided by the "defaulters" who signed post-dated checks in the hope, founded or not, cover them at the time, but for reasons of uncertain and volatile the economy, global or personal, could not, much to his regret. Such checks, used as a means of credit, won the overwhelming support criminal, civil security by shifting the enforcement inherent in all securities. As for the used means of payment, without that characterized the economic consideration that eventually injured the other party to the transaction, were as cancellation of an obligation in this regard were also a form of credit. Also with them spinners of the prison population swelled. But not only were victims of this situation individuals who purchased the goods directly to consumption, but the same commercial establishment, in the distribution network that goes from wholesalers to retailers to ensure they went to check their orders, hoping to cover the amount of the same sale, essentially random event, given the uncertain evolution of the economy, both globally and in the species sold. Thus, the allegory of the big fish eating the boy was up dimension.
addition to this historic reversal, the criminalization of money overdrawn check has contributed to, rather than reining or counteract the behavior that seeks to remedy, behavior of usury and extortion spinners whose victims are insolvent. The speculator has taken advantage of this guarantee expedited criminal thrive in wages of workers, charging usurious rates, with the guarantee of a check date, which, eventually, shaking his victim. If you need to win in the density of intimidation, obtain the movement of the penal system, building on administrative corruption cases increased levy.
manipulation reached the point that many laws criminalized the receipt of blank checks or postdated, or those for which the recipient was aware of his desprovisión. They felt that in many cases the drawer, rather than the perpetrator, was a victim of circumstance of abuse of economic inferiority. Thus Article 494 of the Code of Commerce of Venezuela: "He who has received a check knowing that it was issued without provision of funds, will have no criminal action against the drawer and will be punished by a fine of up to a fifth value of the check or proportional arrest. " In France we have the Decree-Law of 24 May 1938, which criminalizes the acceptance bad faith or without providing forged check.
was not only the criminal definition that has taken part in this historical nonsense, but the same interpretation of the law, formalist trend, imposing a strict liability standard. Jurisprudence and doctrine in defense of some legal rights, particularly the public faith, more abstract dogmatic social reality, have been instrumental in the process bypassing the disculpantes stigmatizing (no intent) or documents (consent of the taxpayer) to comply with a Justice syllogistic automatic embedding of standardization.
The social cost of this penalty was not only to serve as a carte blanche to make extortionate practices, provide the goodwill their business and allow fat to be used as security prison of the debts, but also to stigmatize large segments of the population with criminal labeling, in addition to huge costs for the sordid moral confinement in these centers are overcrowded and violence that our prisons. Irrationality of criminal law, which invalidates socially delinquent debtors defaulted or contractors, placing them in the same plane of the murderers, thieves, violent or sexual assailants.
In the background warned of this problem subordinate socioeconomic status of the actor facing the "victim" or dealer-consumer relationship that shows a connotation of power, whereby the interests of the former have the privilege of criminal protection, while for last no correlative devices as suitable and strong to protect their interests, such as obtaining adequate and fair consideration, particularly in the quality and quantity of products and services, which are common in massive fraud that excuse and tolerate with dolus bonus of civil law.
Taking this imposes the decriminalization of conduct Special check, leaving the criminal devices scam and forgery protection, as they could be characterized as in countries like the U.S. trade and England. Then there is the appeal of the administrative intervention (entity to direct banking) can be expressed through sanctions, fines, suspension and closing of bank accounts, according to the severity of the case and habitual behavior. This move would add to the legal and commercial consequences that within a context of private law involving the parties. In France, a decree of January 3, 1975 has made considerable progress in decriminalization, empowering the state to impose bans Banking Banking and assigning greater responsibility to the banks through credit forced her, obligation to pay all small checks equal to or less than 100 francs, and the sanction crédit, responsibility as guarantors to pay checks of up to 10,000 francs that are not providing, they have awarded contract without the full current account with the minimum requirements of law.
The problem is not the restoration of credibility in check, as theoretical and legally legitimized the process of criminalization in this field, but the irresponsible promotion of a consumerist way of life, also competitive compared to sectors of the population without economic strength, and to which the bait, they answered with the gun unfair imprisonment. Decriminalized is just correcting a historical mistake. The rest is the economic background of social inequality.
CONCEPT: Understands the economic frauds made by money order or transfer of such securities, when they prove unpaid due to insufficient funding or unjustified non-payment order, provided that the act does not set more serious offense.
is characterized by fraud or transfer it to issue an unconditional order payment, as is the check, without having any or sufficient background in the current account, or to order unjustified nonpayment after the broadcast, the bank that held the contract of deposit account.
The check will be an unconditional order of payment, according to the express provision of law (Art. 713, no. 1 and Article 717 of the Code of Commerce), and the historical reasons that gave rise , replacing the currency, to give greater security, comfort and agility to business law.
the Commercial Code is the statute that regulates essentially all aspects of the check, because this is one of the essential means for conducting business operations. Within the 3 rd book, Title III, entitled "In the securities" includes the check as one of them.
Given the nature of the checks, if a negotiable instrument characterized by unconditional order to pay a certain sum of money, and its role within the domestic economy through trade, is that the various legal systems have identified a specific criminal protection.
Protection should not ignore the ever becoming modern and universal principle of elimination of deprivation of liberty for purely civil debts or obligations, enshrined in most constitutions of the States, and particularly in Article 28 paragraph 3 of us.
Precisely this was the biggest criticism of the Decree 1135 of 1970, which ruled the area from that year until the effective date of Code 80, which provided that postdated checks enjoyed prosecution, provided that no were presented before the agreed date.
About this criticism arose one of the claims of unconstitutionality to the Decree, which was resolved negatively by the Honorable Supreme Court, who found no violation of the constitutional provision cited, because the legislature had set such conduct constituting a criminal offense, and therefore the text: "In no case can there be arrest, detention or imprisonment for purely civil debts or obligations, except the judicial attachment "was not touched, because such conduct was not a situation purely civilian.
Thus obtained free via an aberrant country status, which led to the prisons by a number of people, who had issued postdated checks as security for a civil action or commercial, and because of the uncertain circumstances and easily changing the economy could not very reluctantly, to provide the necessary funds to pay checks drawn postmarked.
This was even more absurd by the very malicious behavior of many creditors who received the checks with knowledge of the impossibility (for being the closed account) or difficulty (for the situation known or avowed the debtor) the payment by the drawee of such securities.
Fortunately the legislature removed from the Code of 1980 such a situation, which has remained in the new Code 2000, to have sharp and clearly the fourth paragraph of Article 248 that: "The issuance or transfer or postdated check given as security does not result in criminal action."
On the controversial decision of the Court, which incidentally was divided, it occurs to us that ignored the hierarchy of the regulations, saying that if the legislature determined offense conduct, she was sheltered by the provision constitutional mint ignorance, because it prevails over ordinary laws, and in this case the fact is there expressed was so contested provision in the postdated checks, which was a limitation binding on the legislature.
Haber denied that cases of post-dated checks, including an obligation civilian was merely the result of an exegetical position, ignorant of social reality, particularly commercial, in which a check postdated ranks high as a means of credit .
Neither should the criminal protection of the check, remove the crime of fraud, conduct prejudicial to the estate, which runs a real deception through this title-value, which determines the error in the victim and this in turn, the delivery of the material object of the offense, or the award of benefit illegal.
it should be limited to situations in which defeat the payment of checks due to insufficient funds or because they were not authorized overdraft or countermanded by the drawer unwarranted, provided they do not fit into other criminal more severe.
If someone gets a good paying by check, that states have the corresponding provision of funds, or to shut them not, is conducting a scam, because there are elements in it that we studied in chapter above, with the use of such a negotiable instrument, accompanied by the apparent circumstances of liquidity, a good way deception to induce the victim in error, proceeding for that reason the delivery of the object.
But who pays a debt or obligation by check, resulting in it without proper funding or countermanding, not incurring the deception-error-sequence delivery of the scam itself, it is not shipped the giving of the check, the good, object of the offense, which has been delivered thus becoming the cause of the obligation recorded, giving then a different incidence fraud: asset for its content, public faith in the medium, and economic and social order for its disturbing consequence of this aspect social.
Here pluriofensivo're playing the character of this crime, which has produced controversy among authors, and differences in legal locations, according to the concepts of the legal interests and the preeminence of one of them. In the Colombian Penal Code, the legislator was within the economic crimes against property, thus establishing the prevalence of this property, on the other. Before him was a special act outside the code, making it impossible to know the legislative thinking about it.
During the validity of Decree 1135 of 1970, the a great disparity of interpretation on the applicability of him or the crime of fraud, in some cases, who attended both legal devices. This has been fixed in the new formulation with the words such as: "... provided that the conduct constitutes an offense punishable by a heavier penalty," which makes him an accessory or subsidiary type.
LEGAL DESCRIPTION:
"Article 248. Issuance and check illegal transfer. The check issued or transferred without sufficient funding or who shall give order after issuing unjustified non-payment, incur imprisonment of one (1) to three (3) years, provided that the conduct constitutes an offense punishable by a heavier penalty.
"The prosecution will cease payment of the check before the court ruling."
"The issuance or transfer of postdated check given as security or not gives rise to criminal prosecution. "
" No prosecution may be initiated from the bank transfer or check, if six months have elapsed, counting from the date of its creation, without being submitted for payment " .
"The penalty is a fine if the amount does not exceed ten (10) statutory monthly minimum wage."
Unlike Decree 1135 of 1970, containing a greater number of grounds for non-payment, not referred to in Article transcribed nor did the 1980 Code, the account closed or seized, or the lack of consistency check with the account of the drawer.
These deletions are due to them may fall generally within the other grounds or other types of crimes (fraud, misrepresentation). The canceled check, for example, is equated with insufficient funds, when, having been returned the check for that reason, there was no provision in the bill enough to cover, which is common, ordinarily accounts for the bank canceled bad management, reflected in the return of checks for various irregularities, mainly be no money, or failing that mobility remains are minimal or none.
course must be a misunderstanding on the part of the drawer of the cancellation of the account, not being notified or because the cancellation occurred between the issuance and presentation of the negotiable instrument for payment. If you know this fact then it will be the offense of fraud, as if it were settled account, that is, closed the drawer.
Now, if the account was canceled and the drawer is not aware it, but there are funds to pay the check, this behavior does not imply criminal responsibility, the absence of fraud or deceit so often necessary to such violations.
same happens with the account seized, while the lack of correspondence of the check in the drawer's account, whether they are qualified or not understand the subject, speaking of "spinner" is a perfect scam that can eventually compete with falsehood.
The term "knowingly" in the description of the type which employ some legislation is anti-technical as it is a redundancy of guilt, which is due in the conduct to determine any criminal liability.
also the expression "any capacity" as used in Code 36, is incorrect: it should be taken into account the cause or security which is issued or transferred a check, ruling for criminal protection, those who causes are illegal, (extortion, forbidden games) because of the non-payment, and even checks given by mere liberality, would not affect any financial assets, and we believe there is criminal liability.
According to the formula of Article 248, it exhausts the check giramiento not have enough funding, or unjustified in giving the order of default. However we believe that general practice will be presented to the bank to verify the absence of sufficient funds, or the existence of the revocation order.
ELEMENTS: According to the legal description composing the objective:
a) Issue or transfer of the check.
b) Insufficiency of funds or stop payment order unjustified.
a) Issue or transfer of the check: This is the kernel of the action. Contains two alternative: the issuance and transfer. The first is the creation of the title with his value execution and delivery under the conditions of the law of circulation.
The transfer from the nature of the security check and having it circulated before being presented to the drawee for payment. She can be performed by endorsement and delivery, or by physical delivery only when the carrier has been rotated. Since then the transferor must disclose the circumstances of insufficient funding or unjustified nonpayment order to find him criminally liable.
In the drawer is taken for granted that knowledge, then he must be aware of the status of your account or the funds available, and If the stop payment, it is usually he who gives it.
Usually when there is criminal liability for the transferor is in concurrence with the drawer, because that is who should provide the funds and who can revoke the check. However, eventually, may be just him, when for example the check has been paid directly by the holder turned legitimate, and he offered to return later, he transferred.
b) Insufficiency of funds or stop payment order unreasonable: In the first situation, we need the drawer defraud the legitimate holder of the check by not having the drawee ordering quantity pay. It must be understood including the complete lack of funds, as she is at heart a form of failure.
If the holder accepts the partial payment check, which according to Article 720 of the Commercial Code should be offered to the drawee to the available balance, we do not disappear prosecution, but of course, the amount is determined by the balance not covered.
If the account holder had insufficient funds, but had to turn authorization to overdraw, no illegal, since there is any fraud. This is common in contracts of current account bank under the credit is precisely the business of these entities. Of course, turning within the authorized ceiling.
have added the rule the fact of unauthorized overdraft, do not believe it necessary, because the adequacy of funds does not necessarily require due to the drawer, also due to bank credit, or the liberal provision of a third of the the drawer it may not be news.
The spinner has the power to revoke the checks he issued, giving the bank to stop payment, which must agree to abide by the provisions of Article 724 of the Commercial Code. When that order is unjustified be incurred in this element type. Justify the order in which the check was issued or transferred by coercion, violence, or any other circumstance that illegitimate possession, or failure in the consideration of which derives its existence.
CRIMINAL TYPE FIXTURE: The phrase "provided that the conduct constitutes an offense punishable by a heavier penalty" in Article 248, is giving an alternative to the crime under consideration. It as been said, addresses the conflicting interpretations about the apparent concurrence with the crime of fraud, prior to this clause, some opted for the scam, because of production of illicit profit, and others issuing and checking illegal transfer, by virtue of their special and favorable, interpretive criteria for competitions or conflicts of rules. Now the issue is cleared without a contest.
CHEQUE OR DELIVERED ON WARRANTY POSTSCRIPT: On these two figures, we referred extensively to the beginning of this essay on the "fraud by check." Its legal consecration is just reiteration of constitutional provisions and penal principialística. Regarding the former, because it prevents the banned incurring imprisonment for debt, and secondly, because it would constitute an expression of strict liability.
CESSATION OF THE CRIMINAL ACTION FOR PAYMENT: The criminal cease operating as a privileged action for this offense, in the interests of sensible criminal justice policy for the payment in full, without the restriction of repeat offenders who do set out in Decree 1135 of 1970 in its third paragraph, the article first.
EXPIRY OF THE CRIMINAL ACTION: In the third paragraph of Article 248 in the study, set to lapse in conduct prosecution of "fraud by check, when they have passed six (6) months from the date the date of its creation, without being submitted for payment.
Obey a prudent limitation of time to present the check to the drawee, so as to reduce legal uncertainty.
offers the wording of subparagraph problem, speaking of "creation" of the check, a phenomenon as opposed to "broadcast" as the core statement of the action. The creation does not involve the delivery of negotiable instrument, as may happen cases in which a check is issued after six (6) months after its creation, resulting in a criminal unprotected, truly absurd situation.
think for interpretation which must be treated as an expression to the other under that although in private law such distinction exists in the criminal law-as we said when speaking of the legal-economic assets such concepts are not taken at exactly the same meaning.
criminal law is not just punitive, it has a battery that gives it much of its less formal nature.
It is obvious that here the legislature is referring to the time of dispossession by the creator of the title, this is, in its execution and delivery to the circulatory mood.
specific attenuating BY THE AMOUNT: If the check amount is equal to or less than ten salarios mínimos legales mensuales vigentes, la pena será solamente pecuniaria.
LA ANTIJURIDICIDAD Y LA CONTRAORDEN INJUSTIFICADA.
El Art. 248 del C.P. contiene un tipo compuesto, que lo integran tres conductas, cada una de las cuales puede configurar por sí misma un tipo autónomo, aunque versa sobre hechos de similar naturaleza y giran en tomo a la protección de un mismo bien jurídico. Las normas penales protectoras del cheque han sido por lo general, no solo en nuestro país, sino en la mayoría de las legislaciones, de esa modalidad. En parte se debe a la falta de sistematicidad y técnica que ha acompañado la formulación de estas normas, but also the legislature's decision to assign the same criminality.
would not say why, therefore making it a kind of casuistry, as a generality remain difficult to trace to an even greater generality to encompass the three behaviors described therein. Some authors approval ratings make compounds and formulation types casuistry, not absolute.
The trilogy of conduct that is:
a) Issuing checks without sufficient funding.
b) Transfer check without sufficient supply of funds.
c) Issue check and then give the order unjustified nonpayment.
For the purposes of this topic we are located within the last behavioral assumptions to analyze the term "unreasonable" has to qualify the order of default, particularly in the question of whether it belongs to the type structure , or make connection to the element of illegality, in which case it offers a second problem, whether the inclusion of illegality in the legal formulation of the conduct is anti-technical by their redundancy, then as now expressly states Article 9 of the COP requires the concurrence of illegality, besides the guilt for the determination of conduct as punishable.
There are several types of crimes with expressions that seem to have the same connotation, such as "unfair" or "unlawfully." Let it suffice for illustration: "... a public employee who wrongfully makes known ...", or other expressions as" not justified "," without just cause ", etc.
The low national doctrine on this point has the following views. Authors such as Tiberius and Antonio Quintero Ospina González Arcila, argue that the justification for the stop payment, falls within the grounds of justification of the fact contained in Article 25, paragraph 1 of the Code of 1936, "by operation of law", now located in Article 32 of the new code, number 3 °, under the name of "strict compliance with a legal duty."
the first one says: "Whoever utters any stop payment for any of the above exceptions, is exempt from liability because the work entitled under paragraph 1 of Article 25 of the CP, ie, available the law, because if the stock exchange only straightening of the security payment and that payment can be impeded by permission of the rule, just as the subscriber is enabled by that same rule to resist the payment in advance, ie before the bank pays. "(Quintero Ospina, Tiberius." The check in Colombian criminal law. "Wilches Legal Library, Third Edition, Bogotá, 1980, p. . 63.)
Meanwhile, Ramiro Rengifo believes in a different sense when he says: "I finally justified the order referred to in Article 357 is the typical element distorts unlike the grounds of justification of the fact referred to Article 29 of the CP that exclude the unlawfulness ". (RENGIFO, Ramiro." bill of exchange, check, commercial and criminal issues ", Collection small forum, Issue 3, Bogotá, 1982, pg. 265.) If we look at the circumstances in our country accepted to block checks, we have generally based on legal provisions, mostly relating to commercial law, other civil law, and even scattered rules.
Article 803 of Commercial Code serves as a basis for blocking in the event of loss, theft or robbery, aggravated theft now. In the case of total destruction the countermanding less relevant to the disappearance of the title-value material. In those circumstances, the possession is illegal, and although the person presenting it for collection may be acting in good faith, the document draws on their transfers its illegitimacy, for violation of the law of circulation. You must also factor in paragraph 11 of Article 784, when he speaks of "failure to deliver the title ..." situation that occurs in these cases.
Article 784 of the same status in item 5, based on stop in case of alteration of the title text, which besides being a forgery behavior may involve a scam.
When business that gives rise to the issuance of the check, has been spoiled by error, force or fraud, there is also room to countermand under Article 900 of the Commercial Code interpreted consistently with the provisions of the Civil Code, Articles of Book 4, Title 2 °, regarding the effects of these vices of consent, which may also imply the existence of a crime, whether fraud, extortion and others.
when the business also has causal or unlawful purpose, or lack of cause, is accepted as justified countermanded. It relies on Articles 899 and 784, section 13 of the Commercial Code and the above mentioned civil law. A check that is consequent upon the payment of a sicariorum crime, or the purchase of drugs or the payment of something not because they are cases that fit these circumstances evidence.
When the check was delivered with no intention of doing negotiable, leaving him only in trust for example, is a viable basis countermanded paragraph 11 of Article 784 of the Code of Commerce, in its second part.
Also, when you have verified the phenomena of limitation periods, then loses the check for that category, and thus the civil and criminal consequences.
particular interest is the case of checks whose cause has been the payment of debt incurred in games prohibidos. En él se ha puesto de presente los riesgos de la valoración normativa,"... poco democrático, pues retrograda el Derecho Penal al estado de arbitrariedad judicial e incertidumbre ciudadana en que se encontraba antes de la Revolución Francesa.” (FERNÁNDEZ CARRASQUILLA, Juan. "Derecho Penal Fundamental". Edit. Temis, 1980, pág. 410).
El Tribunal del Distrito Judicial de Bogotá ha sostenido dos tesis encontradas al respecto. Por una parte la que afirma el carácter de justificada de la orden en esos casos, basada fundamentalmente en el artículo 95 de la Ley 153 de 1887, que reza: "el juego y apuesta no producen acción ni excepción. El que gana no puede demand payment. If the loser pays, is in any case, action to repeat what has been paid. "In addition referred to in Article 1524 Civil Code which reads:" There can be no obligation without real cause and lawfully ... It is understood because the reason that induces or contract and unlawful because prohibited by law, or contrary to public morality or public order ".
Moreover we have the thesis does not consider that the order given in such conditions, and therefore punishable by the fact recall. His base is not strictly speaking a rule or law, but a general principle of law, although of great acceptance in the private law, arguably to the right unethical and probably criminal, "no one can claim in your favor their own malice." However, this theoretical foundation does not lose its legislative, because such ingredients may well be purely legal, or have partially or completely extra-legal content.
Our approach supports the first proposition, both for its best foundation and logical consistency, and because it is not exposed as its opposite, the contradiction that the state, which prohibits something, go at once to safeguarding , calling the payment justified, that a law has been established as having no legal backing.
We also dare to add another proof of the fact countermanded payment of the check, but once we note our view that there are absolute, and is the breach of contract, relying on Article 1609 of the CC: "In any bilateral contracts is delinquent contractors failing to comply with the agreement, while the other does not comply on their part, or not to fulfill it paves the way and due time ", which is a consecration of the exceptio non adimpleti contractus, and should be interpreted in connection with Article 1546 of the Code which states in its first paragraph: "In bilateral contracts the condition subsequent is wrapped in case of non compliance by one party the agreement. "
course, this fact is relative, and must be recognized when it is actually given the delay constituting breach of contract. It may be linked eventually fraudulent, scam configures or abuse of confidence, mainly .
According to this quick overview of substantiated cases of non-payment orders, all of them were covered by the general grounds of justification of the act, "provision of the law" or "legitimate exercise of a right", by so the inclusion of the term "unreasonable" would be unfortunate, because for all crimes require the presence of the "illegality" is not necessary or desirable in developing its repetition rate.
can not say the same thing in other cases of criminal offenses, in which the respective expression does not always coincide with the general evidence, as in the criminal offense of "relative absence, in which the just cause may be a situation of physical or psychological disability forced the food supply, or in the event of involuntary unemployment, assumptions that do not fit within the grounds of justification of the act, and particularly in the "strict compliance with legal duty ".
In cases like this, the inclusion of the phrase "without cause" or similar appropriate, are fully valid logic. Not so in the form analyzed the "fraud by check, and many others as authors like Mezger tend by their exclusion from the typical description. However, most recognize the link between the normative elements of unlawfulness are in favor of conservation. Jiménez Huerta, non-text citation of Servius Tullius Ruiz, argues in this sense: "There are behaviors, says Jiménez Huerta, the legislative technique can not be easily modeled without reference to a normative element, as normally behaviors are lawful and only rarely, when carried out unfairly, improperly or illegally, become relevant criminal. Regulatory elements embedded in the type, he argues, are a warning to the criminal court, you are warned that in a way more special than in other cases must specifically state the illegality of the conduct, then precisely because of this assessment legislation, something can happen, being identical to the material behavior that lies at the root of the two trials, in fact essentially apparential made lawful to unlawful, just as in types free of elements, a fact can pass illegal apparential more permitted. If you deep into the true meaning of the elements, forced to conclude they have no role in the structure of crime, apart from the instrumental plays in the legislative technique. " (RUIZ, Servius Tullius. "General Theory of the offense." Bookstore Professional Edition, Bogotá, 1980, pp. 186-187).
Indeed, exposing citizens to the serious consequences of criminal prevention, when they carried out acts that are typically in practice is permissible, but at least very often, establishing strong indication of liability, net of typical framework of such conduct, to wait for the significant time full proof of the general proof, is a gross injustice. Discounting evidence to be treated really special, not subsumed within the overall evidence, the other cases provided very useful to justice, as considéreseles or not, part type, are observed by the judge, calling attention indeed the high likelihood of proof, and also to pave the way procedural, must fail unnecessarily or in time or as burdensome to the accused, the proof must be present in the type included in the particular case under investigation.
So, although at first appear to be redundant and anti-technical, exposed the valuable practical reason, requires inclusion in the typical description, avoiding that in trials for this type of behavior, are imparted drastic preventive measures of deprivation freedom, under the typical adjustment would be made by the mere countermand the check without examining why it would, but the classification of "unjustified" by the order, and would involve a serious sign sustainer of responsibility measure restricting freedom pending distort the criminality of the act by the full verification of the general proof, or in a different procedural stage through the implementation of procedural dismissal on the grounds that it is fully demonstrating that the law does not consider the act charged as criminal offenses.
0 comments:
Post a Comment