The essence of deception
The offence of fraud is to lead another person, in order to get a property benefit, to an adverse regulation of his own or of another person's property by misleading him or exploiting an mistake or inability to decently comprehend the action taken. This offence is punishable by imprisonment from 6 months to 8 years (Article 286 §1 kk).
As pointed out by the ultimate Court, the simplest, and by its imagery besides the most understandable way of demonstrating the conduct of a criminal fraud, is to mention to ordinary, commonly applied and respected principles of fairness that govern human relations, including in the area of commercial and service activities. It is clear that no 1 who wants to follow these rules does not “go” to a barber, does not opt for a paid dental service, does not refuel the car if he knows that he does not have the means to pay for the service or acquisition done. It is so completely indifferent to the reason why it does not have them – whether due to its responsibility or due to the fact that it is independent of itself (yes: order of the ultimate Court of 26 September 2018.
Form of prosecution of fraud
Fraud is being prosecuted by public prosecution. However, if fraud (also as a request for a property benefit in exchange for the return of the wrongfully taken item) has been committed to the detriment of the loved one, the prosecution takes place at the request of the victim.
The offender's intent to commit fraud
The ultimate Court stressed that fraud is simply a directional crime, as the condition for liability is action or omission of the perpetrator in order to get a property benefit. A direct intent with a peculiar colour related to the intent of the perpetrator's action means that the elements of the fraud must be within the consciousness of the perpetrator and must be covered by his will. The perpetrator of the fraud must not only want to get a property benefit, but must besides want to usage a circumstantial mode of action or omission for this purpose. Therefore, fraud does not happen either if:
- one of the elements presented is not covered by the perpetrator's consciousness as well as then,
- If 1 of them doesn't want to, he just agrees.
Thus, in the event of the offender acting in the intention to commit a possible fraud as provided for in Article 286(1) k.k. (yes: ultimate Court judgement of 3 April 2007, III K 362/02, LEX No 296749).
The perpetrator includes his awareness and direct intention (direct) not only that he misleads another individual (relatively exploits an error), but besides that he thus leads him to an adverse regulation with property – and at the same time wants to fill these marks (so: L. Gardocki, Criminal Law, Warsaw 2002, p. 306, as well as the judgement of the SA in Katowice of 17.08.2000, II AKa 168/00, OSA 2001, No. 7-8, item 51, judgement of the SA in Katowice of 13.12.2001, II AKa 312/01, KZS 2002, No. 4, item 45).
The ultimate Court, in its judgement of 21 August 2002, No. III KK 230/02, pointed out that the offence under Article 286(1) k.k. was to lead another individual to an adverse individual or another property by misleading him or by exploiting an mistake or inability to reasonably realize the action taken. This is simply a deliberate crime that may be committed only in direct intent. This nonsubjective is to accomplish a wealth benefit. The course of the offence of fraud ends erstwhile the wrongdoer has the wrongdoer's property.
In order to accept a criminal offence under Article 286(1) of the Code, the court must, erstwhile examining the subject party, show on the basis of evidence that the offender included his direct and direct intent not only to mislead (abuse of error, etc.) and to act in order to get a property benefit, but besides that, at the time of the action aimed at obtaining the benefit, he included his direct and directed intent that the individual in charge of the property did so with disadvantage to himself (yes: judgement of the ultimate Court of 6 November 2003, II KK 9/03, LEX No 83773).
Property benefits in fraud
The concept of ‘proprietary benefit’, which is the object of the perpetrator, is understood broadly. It is about current and future acquisition of property, more mostly – improving the property situation. The perpetrator does not request to search to misappropriate property, that is, to get a wicked property benefit. As a organization to the agreement, he may even be accompanied by a willingness to comply with it in the future. Many times this will is declared and accepted e.g. in credit or acquisition contracts – sales with deferred payment. The perpetrators intend to pay the debt or pay for the goods in the future. But the thing is, fraud besides occurs whenat the time of the conclusion of the contract, compliance with its conditions by the perpetrator is unrealisticbecause of his financial situation, and if the another organization (injured) knew this situation, the agreement would not have concluded and ordered property; however, it does so due to the fact that it was misled by the perpetrator or utilized its misconception as to the property situation of the perpetrator (yes: order of 14 May 2019 II KK 265/18 and in the year of the territory Court in Bielsko Podlaski of 11 September 2020, Act II K 211/20).
The asset benefit shall be understood as an advantage to the perpetrator, to another natural or legal person, to an organisational entity without legal personality or to a group of persons carrying out organised criminal activity, as provided for in Article 115 k.k. The property benefit is to increase assets or reduce assets, i.e. any acquisition of assets or avoid losses or to reduce charges (yes: J. Majewski (in:) G. Bogdan, Z. Ćwiąkalski, P. Cardas, J. Majewski, J. Raglewski, M. Szewczyk, W. Wróbel, A. Zoll, Criminal Code. General. Commentary , ed. II, pp. 626-627).
An Unfavourable Regulation for Cheating
The offence under Article 286(1) of the Code refers to the concept of ‘inadvantageable property regulation’, the value of which cannot in any event be identified with the degree of the damage. As indicated in the caselaw, the statutory mark resulting from the offence of fraud referred to in Article 286(1) of the Code shall be completed erstwhile the offender, acting in the manner described in that provision, places another individual in a regulation with property which is detrimental to the interests of that individual or of another victim. The occurrence of harm in property is not a essential condition for the adoption of specified an unfavourable regulation (yes: ultimate Court judgement of 30 August 2000, V KKN 267/00, OSNKW 2000/9-10/85, TSO 2001/5/51).
Therefore, for the existence of the offence referred to in Article 286(1) of the Code, no harm is required in the property of the victim. While the most frequently adverse property regulation will lead to damage, it does not always should be so. Also, the perpetrator, who acts “to accomplish a wealth benefit”, does not gotta accomplish that benefit. The mark of the offence under Article 286(1) of the Code is to bring about an ‘disadvantageable regulation of property’ alternatively than ‘disposal of property’ (yes: ultimate Court judgement of 26 February 2019, Ref. Act IV KK 406/18).
As regards the provision of Article 294 §1 k.k., it states that the punishment referred to therein is to be imposed, inter alia, on the individual who commits the offence referred to in Article 286 §1 k.k. ‘in relation to property of considerable value’. This provision does not mention any "material damage" as in the case of, for example, the offence referred to in Article 296(1) k.k. which refers to the concept of "significant property damage". It should so be stated explicitly that, in relation to the fraud offence, the concept of ‘in relation to property of considerable value’ refers to the value of the object of the enforcement (value of property which has been wrongly ordered) and not to the actual harm caused by that act (yes: ultimate Court judgement of 26 February 2019, Act No IV KK 406/18).
The concept of property utilized by Article 286(1) is understood broadly – as a synonym of property, and in fact as a full of the property situation of a given entity (so: M. Dąbrowska-Kardas, Piotr Cardas [in:] Penal Code. peculiar part, Vol. III, Commentary on ed. A. Zolla, Warsaw 2008, p. 254, post. SN of 15.06.2007, I KZP13/07, OSNKW 2007 no. 7-8, item 5).
The intent of criminalising fraud is to defend each entity from deterioration of the property situation due to the behaviour of the perpetrator described in the nature of the offence, leading to ownership of the property, navet if the consequence is not material harm to the victim (Yes: J. Bednarzak: Crime of fraud in Polish criminal law, Warsaw 1971, pp. 70-74, M. Dąbrowska-Kardas, P. Cardas, op. cit., pp. 275-276, T. Oczkowski: Fraud as a property and economical crime, Kraków 2004, pp. 65-66, A. Prejbisz: An adverse regulation of property as a mark of fraud, Prok. I Pr. 2005/10, judgement of SN of 30.08.2000, V KKN 267/00, OSNKW 2000, no. 9-10, item 85, post. SN of 27.06.2001, V KKN 96/99, Lex no. 5167).
Action to benefit from fraud
A mark of action to accomplish a property benefit is crucial to the designation of a given conduct as a fraud offence. It is pointed out that the fraud offence referred to in Article 286(1) of the Code is simply a deliberate offence, which is included in the alleged intentional variety of directional offences. Its subjective features go far beyond the external conduct of the perpetrator, giving him a peculiar sense, without which the behaviour of the perpetrator is irrelevant from the point of view of criminal law (yes: D. Pleńska, O. Górniok (in:) Criminal Law System..., Vol. 4, p. 419).
The Act requires that the perpetrator's conduct be targeted at a circumstantial purpose, which, in the case of fraud, is to accomplish a property benefit. The perpetrator, erstwhile taking action, must have an thought of the situation desired for him to be the consequence of his behavior. specified designation of the characteristics of the entity excludes fraud with intent (Yes: ultimate Court judgement of 20 July 2007, III KK 29/07, LEX No 307787 and ultimate Court judgement of 19 July 2007, V KK 384/96, and M. Dąbrowska – Cardas, P. Cardas, Criminal Code. The peculiar part. Tom III. Commentary on Articles 278 – 363 k.k., ed. A. Zoll, WK 2016, comment on Articles 286, thesis 90).
Misleading fraud
It is besides a fraud to act as a perpetrator who, at the time of placing an order for the supply of goods or services, intended not to pay dues, thus leading the counterparty to an adverse regulation by misleading. This besides applies to cases where the offender was already at the time of placing the order or at the time of taking the goods he intended to neglect to comply with the payment deadline and to postpone it for an indefinite period of time or was not in fact able to meet his contractual work on the date of its establishment. However, the condition for attributing the offender to fraud in these cases is to establish that He was aware of specified a situation. (yes: judgement of the Bialystok Court of Appeal of 26 April 2019 II AKa 210/18, LEX No 2718220).
A mark of confusion or misappropriation besides occurs erstwhile the perpetrator He deliberately withheld before the counterparty an objectively existing situation that affects the ability to meet the terms of the transaction resulting from the contract. It is adequate to show that revealing the actual state of affairs would prevent the victim from concluding the contract or would lead to a more effective safeguarding of its performance. Misleading as a consequence of an adverse Regulation besides results in property calling for a misconception of the circumstances determining the regulation or the method of regulation (yes: ultimate Court judgement of 6 December 2017 V KK 240/17, OSNKW 2018/2/21; KZS 2018/3/13).
The ultimate Court, in its judgement of 27 October 1986, II KR 134/86, OSNPG 1987, No 7, item 80, stated that, in a situation of confusion, the perpetrator is brought to the consciousness of the victim or of another individual whose property is the subject of a regulation by a misleading person, a false thought (a discrepancy between reality and its reflection in the consciousness of the individual making the regulation). The incorrect reflection of reality in the ownership consciousness is so the consequence of the actions taken by the perpetrator.
It is the case that a causal link must be between the conduct of the perpetrator, consisting of misleading, exploiting a mistake or exploiting inability to reasonably realize the action taken and an adverse property measurement (yes: judgement of the ultimate Court of 2 December 2002, IV KKN 135/00, LEX No 74478, judgement of the ultimate Court of 15 November 2002, IV KKN 618/99, LEX No 75460).
Similarly, the Court of Appeal in Katowice in its judgement of 31 August 2000, the mention of Act II Aka 191/00, Prok. and Pr. 2001, No. 3, item 19, noting that fraud involving the introduction of property by misleading is simply a double-effect crime. For criminal liability, it is essential to establish that there is simply a causal link between the conduct of the offender and the effect of misconception of the property of reality, in the part setting out the elements applicable to the decision on the property regulation, and to establish that there is simply a causal link between the conduct of the perpetrator and the property regulation (such as the ultimate Court judgement of 15 November 2002, Case No. IV KKN 618/99, LEX No. 75460).
Misleading must relate to the essential circumstances of the case which may affect the decision on the property regulation. In another words, the action to origin the mistake must mention to the circumstances that the property regulation is of an adverse nature (yes: ultimate Court judgement of 28 June 2000, III KKN 86/98, OS 2001, of 1, item 10; ultimate Court judgement of 30 August 2000, V KKN 267/00, OS 2001, of 3, item 51).
Failure to include in the operative part of the judgement the wording ‘for the intent of obtaining an asset benefit’
The ultimate Court, in its judgement of 6 February 2019 in Case II KK 179/18, in the event that the court ruling by the usage in part of the dispositive judgement of the phrase ‘for committing an alleged offence’ reproduced an mistake in the description of the act contained in the indictment and consequently sentenced the accused for having ‘in a given period led to an adverse regulation of his own property by another individual for the amount in question by misleading him or her as to the fact that he or she had purchased the item’, and therefore, where the description of the act did not contain a crucial fraud of the meaning of ‘in order to get the property benefit’, it would have been considered that if any introduction into the wrongful regulation of property by another individual was equivalent to an action in order to accomplish the property benefit, the legislator would gotta have to have the effect of including in the provision of Article 286(1) k.k. the wording ‘in order to get the property benefit’, and specified an application would be grossly contrary to the prohibition of explanation per non est.
The ultimate Court pointed out that, as a consequence of the deficiency of the usage in the dispositive part of the judgement of the phrase "to get the property benefit", no firm conclusions could be drawn on the organization to the defendant's individual conduct, not to mention the form of intent in which the suspect acted. After all, 1 can imagine a situation where 1 misleads another and leads to an adverse regulation of property due to recklessness or negligence or action with the resultant intent.
A description, which does not propose to whom the victim gave the money for the acquisition of the goods and who was to acquisition it, would so be subject to both a situation in which the accused, without intent to mislead, solely due to deficiency of adequate cognition of the language, would incorrectly translate the incoming email from the seller and inform the victim that a sales contract had been concluded, which would consequence in the victim transferring the amount due to the seller's account, even though the contract was not concluded, as well as specified a situation in which the accused would knowingly have provided specified information, only by agreeing to itthat the contract expected to be concluded by the injured organization may not be concluded and that the injured organization may have difficulty recovering the money transferred to the carrier.
The ultimate Court pointed out that, however, neither Article 413 §2 (1) (k) nor any another legal provision requires that only statutory returns be utilized in the description of the act, in the construction of the description of the offence, it is adequate to usage an equivalent expression or to replace the statutory expression by specified a word as to fulfil the meaning of the mark of the crime attributed to it, the fact that, in the written recitals of the judgment, the court of first instance accurately described the facts and stated that the accused acted with direct direction, for the reasons stated above could not have satisfied the deficiencies of the operative part of the judgment.
The judicature holds the view that maintaining a conviction in the power of a conviction which contains a description of an act which does not contain all the elements of a prohibited act would be grossly unfair due to the fact that it would violate the constitutional rule of the numlum crimen sine lege (Article 42(1) of the Constitution of the Republic of Poland), which is the basic condition of criminal liability as expressed in Article 1(1) of the Law (yes: ultimate Court judgement of 19 May 2015, V KK 53/15, OSNKW 2015, dated 10, item 84).
Privileged form of fraud and tiny value of damage
Relatively tiny amounts of harm cannot find the adoption of a privileged form of fraud (yes: order of the ultimate Court of 22 December 2010 No. II KK 279/10).
Minor accident in fraud
In a insignificant case, the offender is subject to fines, imprisonments or imprisonments up to the age of 2 (Art. 286 §4 kk).
Order of the court to declare the acquisition of inheritance as a property regulation for fraud
Since the subject of the offence referred to in Article 286(1) is to defend each entity from deterioration of the property situation as a consequence of the behaviour of the perpetrator described in the nature of the offence, the view should be called into question that the decision of the court declaring the acquisition of the inheritance could not lead to an adverse change in the property situation of the heirs.
It is actual that the acquisition of the inheritance takes place ex lege at the time of its beginning (Articles 922.1 and 925 kc), but it cannot be overlooked that the judgement of the court given pursuant to Article 1025(1) kpc constitutes a legal confirmation by the heir of the acquisition of the property (or co-ownership) of the inheritance. Only by order of the court determining the acquisition of the inheritance or equivalent inheritance certificate issued by the notary, the heir may show to 3rd parties his rights arising from the succession (Article 1027 kpc).
Moreover, according to Article 1028 kc, the individual indicated in the decision to get the inheritance, even if he is not an heir under the law, effectively disposes of the inheritance right to a 3rd party. This is peculiarly crucial in the case of property inheritance. Without a decision to establish the acquisition of the inheritance or certificate of inheritance, the heir will not be entered in the perpetual book as the legal successor to the deceased property owner. However, he will receive specified an entry, utilizing the guarantees of the reliability of the eternal books of the individual who identifies himself with specified a provision, even if its content does not correspond to the statutory or will order of inheritance.
The above comments make it clear that the adoption of the order stating the acquisition of inheritance creates a fresh legal property situation on the part of each individual in the ellipse of heirs. That paper entitles the individual referred to in the Regulation to the succession and, of course, to take possession of it or to exercise specified power in proceedings for the succession. It is besides clear that the consequences of the court order besides form the property situation of the individual in it omitted in violation of legal inheritance rules. Without its amendment, that individual may not exercise the rights to property which he is entitled to for inheritance. According to Article 1025(2) it is presumed that the heir is the individual who obtained the declaration of acquisition of the inheritance or the certificate of succession (yes: judgement of the ultimate Court of 14 January 2010, V KK 235/09, OSNKW 2010/6/50, and judgement of the ultimate Court of 29 August 2012. Act No V KK 419/11).
As the ultimate Court pointed out in its judgement of 29 August 2012 in Case No. V KK 419/11, the order of the court is the title of the holding of the individual referred to therein as the right acquired by inheritance. erstwhile the order has passed, the legal position of the owner to dispose of the property arises. This is illustrated by the circumstances of the case before the ultimate Court, erstwhile the defendant, having the order of the territory Court to declare the acquisition of the full agricultural holding, obtained an entry in the perpetual book confirming its exclusive property. In a short time, he distributed the farm, giving it to his son. The beneficiary of this activity, which was in good faith, protected Article 1028 kpc. The regulation was so effective and even the subsequent amendment of the court order, which already established the inheritance of the farm by both statutory heirs after half, could not bring the effects of the donation to an end.
These circumstances so confirm that the decision of the court to establish the acquisition of the inheritance is simply a real and direct activity affecting the property situation of persons who, in accordance with the rules of succession, are or should be covered by the proceedings. It so constitutes an act of the Regulation within the meaning of Article 286(1) kk. In relation to a individual who, in violation of the rules of civilian law, has been disregarded in the provision, this is an adverse regulation in the event that the legal position of that individual deprives him of his due delivery. The civil-law declaration of the nature of the ruling is irrelevant, since its issue has concrete implications in the area of property of persons entitled to inheritance
Judicial fraud
The civilian law meaning of the ‘propriety order’ does not find the explanation of that concept on the grounds of the characteristics of the organization to the offence referred to in Article 286(1). It has a circumstantial meaning, corresponding to the protection in question and refers to the widely perceived property position of the victim. Its adverse amendment may consequence from a regulation, understood as any exercise of possession of property, provided for by law, which shapes a peculiar legal state.
It may besides be the decision of the court in proceedings for the acquisition of a succession. If there has been an omission in the order of the court of the individual entitled to inherit, as a consequence of the presentation of false evidence by the perpetrator seeking to get a property benefit, specified an act may constitute a alleged judicial fraud which fulfils the characteristics of the offence referred to in Article 286(1) kk. Its specificity is that the ‘person’ misled and making regulations is the property of the court, and the injured individual to whom the judgement of the court causes adverse changes in the property situation (yes: ultimate Court judgement of 29 August 2012) Act No V KK 419/11).
