Qualification Problems of the Crimes of Illegal Disposal of a Non-Cash Payment Instrument
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Abstract
There was no responsibility provided in the old Criminal Code (1961 year) for the crimes of illegal disposal of an electronic non-cash payment instrument. The responsibility for such acts has been set since 2003. This new law has caused many problems concerning the practical proceedings of law enforcement agencies. The author have collected some urgent problems and tried to solve them out.
Some crime features are described as alternative by the law. In such a law an act could be described presenting several features. Such crimes could be committed either by one or several of the acts. If a crime has been committed by one act or several acts, such an act is considered to be one crime according to the Criminal Code. The act features of the crimes provided in the Criminal Code (Article 214 – illegal acquisition, possession, transfer or realization and Article 215 – illegal initiation or transaction of financial operation) are set out as alternative, therefore the following acts must be qualified as one crime.
When a criminal, paying with an electronic non-cash payment instrument, signs a check, such an act is not separately qualified as forgery. Courts’ practice says that signing a check is a part of a crime described in the Criminal Code (Article 215) and is a part of illegal initiation or transaction of financial operation. Author argues that such signing is a part of fraud, but not a part of illegal initiation or transaction of financial operation. Responsibility for the fraud has been set out, if the value of illegally acquired property is more than 130 Litas (1 Minimum Living Standard). When criminal used electronic non-cash payment instrument and his obtained property value is more than 130 Litas, his act must be qualified according to the Articles 182 and 215 as fraud and illegal initiation of financial operation, and Article 300 as forgery. However, if the value of illegally acquired property is less than 130 Litas, the signing of the check can not be qualified as fraud according to the Article 182 but must be qualified according to the Article 300 as a forgery and Article 215 as illegal initiation of financial operation.
When a criminal using the same payment instrument performs several financial operations, it is necessary to decide whether there is one continuous crime in his/her actions or several separate crimes. If several crimes, pursuant to the Criminal Code (Articles 215 and 182), are committed and they have the features of continuous acts, such actions are qualified as one crime.
It is problematic when a criminal pays with an electronic payment instrument belonging to another person several times thus acquiring other person’s property and is detained having used this payment instrument for several times. In such situations the actions of a criminal that were stopped at the attempt phase are not qualified separately as an attempt to commit a crime but are deemed to be a part of a continuous crime. A crime is qualified considering the fact whether malice prepense is defined or not. When a criminal commits a crime with defined malice prepense, his/her criminal act is qualified according to the consequences that he/she tried to attain, whereas when there is no defined malice prepense, criminal acts are qualified according to the consequences that occured.
Some crime features are described as alternative by the law. In such a law an act could be described presenting several features. Such crimes could be committed either by one or several of the acts. If a crime has been committed by one act or several acts, such an act is considered to be one crime according to the Criminal Code. The act features of the crimes provided in the Criminal Code (Article 214 – illegal acquisition, possession, transfer or realization and Article 215 – illegal initiation or transaction of financial operation) are set out as alternative, therefore the following acts must be qualified as one crime.
When a criminal, paying with an electronic non-cash payment instrument, signs a check, such an act is not separately qualified as forgery. Courts’ practice says that signing a check is a part of a crime described in the Criminal Code (Article 215) and is a part of illegal initiation or transaction of financial operation. Author argues that such signing is a part of fraud, but not a part of illegal initiation or transaction of financial operation. Responsibility for the fraud has been set out, if the value of illegally acquired property is more than 130 Litas (1 Minimum Living Standard). When criminal used electronic non-cash payment instrument and his obtained property value is more than 130 Litas, his act must be qualified according to the Articles 182 and 215 as fraud and illegal initiation of financial operation, and Article 300 as forgery. However, if the value of illegally acquired property is less than 130 Litas, the signing of the check can not be qualified as fraud according to the Article 182 but must be qualified according to the Article 300 as a forgery and Article 215 as illegal initiation of financial operation.
When a criminal using the same payment instrument performs several financial operations, it is necessary to decide whether there is one continuous crime in his/her actions or several separate crimes. If several crimes, pursuant to the Criminal Code (Articles 215 and 182), are committed and they have the features of continuous acts, such actions are qualified as one crime.
It is problematic when a criminal pays with an electronic payment instrument belonging to another person several times thus acquiring other person’s property and is detained having used this payment instrument for several times. In such situations the actions of a criminal that were stopped at the attempt phase are not qualified separately as an attempt to commit a crime but are deemed to be a part of a continuous crime. A crime is qualified considering the fact whether malice prepense is defined or not. When a criminal commits a crime with defined malice prepense, his/her criminal act is qualified according to the consequences that he/she tried to attain, whereas when there is no defined malice prepense, criminal acts are qualified according to the consequences that occured.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
