Anastasiya Moskalenko and Igor Berdan successfully protect borrowers from charge of fraud
07.03.2013
Recently in practice of the Law Firm "Moskalenko & Partners" emerged some cases which identify dangerous trend of criminal harassment of banks’ borrowers (and/or guarantors) who didn’t fulfill credit obligations completely under the Article 190 of the Criminal Code of Ukraine (fraud).
It is important to note that according to Para 18 of Resolution of Plenum of the Supreme Court of Ukraine № 10 as of 06.11.2009 „On judicial practice in cases of property crimes" receiving property with the condition of fulfillment of some obligations shall be qualified as fraud only when guilty person at the time of obtaining property was intended to appropriate it without fulfillment of obligations.
The objective side of fraud consists in a misappropriation of property or an acquisition of the property right of the victim by false pretences or breach of trust, subjective side is characterized by direct intention and lucrative impulse. The absence of one of the elements of fraud, including objective or/and subjective side, means that act of a person whose conduct is assessed, is not a crime and may indicate the civil relationships between complainant and offender.
Thus, if the borrower returns at least part of money under the credit agreement or in case of conclusion mortgage agreement with further transfer of property rights to debtor, and in the absence of evidence of the borrower’s (guarantor’s) intention to default obligations at the time of obtaining credit, there are no grounds for criminal responsibility due to absence of objective and subjective sides of fraud in borrower’s actions.
It is important to note that according to Para 18 of Resolution of Plenum of the Supreme Court of Ukraine № 10 as of 06.11.2009 „On judicial practice in cases of property crimes" receiving property with the condition of fulfillment of some obligations shall be qualified as fraud only when guilty person at the time of obtaining property was intended to appropriate it without fulfillment of obligations.
The objective side of fraud consists in a misappropriation of property or an acquisition of the property right of the victim by false pretences or breach of trust, subjective side is characterized by direct intention and lucrative impulse. The absence of one of the elements of fraud, including objective or/and subjective side, means that act of a person whose conduct is assessed, is not a crime and may indicate the civil relationships between complainant and offender.
Thus, if the borrower returns at least part of money under the credit agreement or in case of conclusion mortgage agreement with further transfer of property rights to debtor, and in the absence of evidence of the borrower’s (guarantor’s) intention to default obligations at the time of obtaining credit, there are no grounds for criminal responsibility due to absence of objective and subjective sides of fraud in borrower’s actions.
