Objective and subjective side of the crime of “fraud” and other elements

Distinctive features of the corporate type of fraud are the problematic nature of detecting offenses and the difficulty of forming an evidence base. Fraudulent actions within large enterprises are always deliberate and aimed at obtaining their own material gain.

Based on an analysis of work in the largest banks and companies, a number of main reasons for the occurrence of corporate fraud were identified. More than 61% of employees committed illegal and fraudulent acts due to the lack of monitoring and audit of processes, 45% - due to professional competencies and capabilities, since their activities were related to back office work, accounting and operational work, 27% - due to the presence such technical possibility. View information

Regular and qualified compounds

The Criminal Code, together with Article 159 “Fraud,” introduces several additional types of acts that can qualify the theft of funds from banks or their clients. One of the main ones will be Article 159.1 of the Criminal Code of the Russian Federation, which provides for liability for obtaining a loan. Article 159.3 of the Criminal Code of the Russian Federation directly introduces liability for fraud using bank cards. Article 159.6 of the Criminal Code of the Russian Federation “Fraud in the field of computer information” will force the criminal to answer for the theft of money from the accounts of citizens or legal entities using modern computer programs. In addition, when investigating fraud with the money of banks and their clients, investigators may discover deliberate bankruptcy, forgery of documents, and abuse of official position.

Statute of limitations

It is possible to bring the perpetrator to justice before the statute of limitations has expired by drawing up and submitting an appropriate application to government agencies. The limitation periods for fraud provided for by criminal law are:

• In the general case (for Part 1 of Article 159 of the Criminal Code of the Russian Federation) – 2 years.
• For part 2 of the same article – 6 years.
• For parts 3 and 4 – 10 years.
• For parts 5 – 6 years.
• For parts 6 and 7 – 10 years.

Phishing

Fraudsters use several standard mechanisms for stealing money:

• a mobile phone, sometimes not even linked to an account, receives a call from a bank employee or even its security service. The client is told about questionable movements on the card and is asked to provide the CVV - the code for verifying the authenticity of the card by the payment system. You should never report anything if the call was not made by the client using the support number; any information can be used for theft. It is better to interrupt the call and call your bank manager back yourself;
• The client receives a letter signed by his servicing bank. The link offered in the letter leads to an analogue of your personal account, where you need to enter your login and password. Banks never use this method of working with clients; any letters to personal email with a request to provide personal data, card number or enter your login and password signed by a bank employee will be sent by a fraudster.

An analogue of phishing is pharming, but this method is more complicated and only works with small banks. It is impossible to replace the official Sberbank page with a fake one and gain access to citizens’ online bank, but theoretically, using the capabilities of DNS servers, this can be done with small credit institutions. In Russia, information about such cases was not reported to the public press, either because this type of theft was not used, or bank security services managed to prevent such cases and prevent the leakage of dangerous information that could cause damage to reputation in the media.

Phones and other mobile devices

But if Mobile Banking is installed on a mobile device, then visiting sites that can launch a virus program into the device and replace the Internet Banking window with your own design is possible. It is necessary to be extremely careful about any, even minimal, changes in the interface. At the same time, such fraudulent programs can simultaneously block the receipt of SMS messages about withdrawing money from the account. Failure to receive a message about your own operation will already be a signal to update your anti-virus software.

A lost phone with Internet banking installed on it will be a fraudster’s dream, despite the fact that browsers do not remember passwords to enter your personal account; the password could be read by a virus program. Based on this, you need not only to think about the safety of mobile devices, but also to be attentive to the situation when a mobile device is sent for repair.

Internet

When paying for programs, books, music, or goods purchased online, you are often required to enter your card number. The funds for the purchase are written off, and the happy owner of the new game does not think that his card number could become known to scammers. Interception can be carried out using programs installed on the seller’s website, and then the money will be debited from the card. You can avoid this risk if, when paying for goods online:

• keep money on a special bank card, to which more funds are not transferred than necessary to make one purchase;
• use virtual bank cards;
• do not use unverified sites;
• install the Secure Code service.

Examples

Examples of fraud within enterprises:

1. The employee responsible for concluding transactions with customers, on the eve of signing the contract, transfers information about the subject of the agreement, the amount of the contract and the proposed conditions to a competing company, which at the last moment rejects the client. The employee receives a percentage of the competitor's contract amount.
2. The metal-working machine was sold and registered as scrap metal. The machine was cleaned, lubricated, painted, new technical documentation was issued for it and sold back to the production plant with a 60% markup.
3. Increasing the wage fund while simultaneously reducing staff.
4. Inclusion of “dead souls” in the statements for payment of funds.
5. Organizing the purchase of a consignment of goods at prices above market prices.

New method of theft

Recently, fraudsters tried another modern method of stealing funds from plastic cards using mobile communications. From the number 900, which shows that the message came from Sberbank, a message is received prompting you to send a response SMS to confirm or cancel the money transfer. Next, the frightened client receives a call from the number 8-800-555-5550. A person who introduces himself as a bank employee confirms the need to send an SMS to cancel the transfer. If the client does this, then the money goes away. Modern mobile communication technologies make it possible to operate in this way, replacing real telephones with telephones of a credit institution.

ATM fraud

ATMs are less likely to become victims of fraudsters, security cameras pose a certain danger to criminals, but they also end up on the pages of criminal chronicles. Most methods of stealing funds using ATMs came to Russia from the West; they require the use of special technical devices.

Skimming

This model of an attack on the funds of individuals who use the services of ATMs to withdraw cash involves installing a small device in the ATM that “collects the cream” - copies all the data from the magnetic line of the bank card. Together with it, a device can be installed to retrieve information about the PIN code when entering it. Interestingly, such devices can also be installed in stores; they will copy information when purchasing goods and paying with a bank card. The skimming device is offered for sale for only a few tens of thousands of rubles, which leads to the fact that employees servicing ATMs detect them up to 1,200 times a year.

Assuming that this equipment is installed at a remote ATM installed in a secluded place, it is better to contact the bank via the “hotline” (its telephone numbers are on almost every ATM) and find out whether the institution uses anti-skimmers.

Lebanon Loop

Another method of theft or fraud is when criminals try to steal a bank card as a physical object. The card reader is equipped with special devices that capture the card and prevent the user from getting it back. It takes him a few minutes to contact the support service, and during this time the scammers try to remove the plastic from the ATM themselves. The latest ATM models exclude the possibility of using this method of theft; the card will remain in the device until the collectors appear.

ATMs are constantly being improved, in Russia the risks of suffering from skimming and other similar types of fraud are minimal, but on tourist trips to less developed countries you need to remember the existence of these types of dangers and withdraw money from ATMs of unknown foreign banks as little as possible. There are also frequent cases of installation of counterfeit ATMs abroad. They show a software malfunction, while reading all the necessary information from the bank card.

How money is stolen from ATMs

In the spring of 2021, banks themselves began to suffer from ATM fraud. A new virus has appeared that infects the device. After that, when a certain sequence of numbers is entered into it, it gives out funds to the attackers. While the widespread use of this method in Russia is unknown, banks have begun to change their software to prevent this virus from functioning.

Question answer

Question 1. How to prove intentionality of actions?

Answer: The first step is to conduct a thorough audit of the financial and permitting documents of the company or individual entrepreneur. The texts of agreements and contracts must contain indications that the obligations undertaken are unreasonable, as well as other evidence confirming the presence of intent to cause damage to the other party. Evidence of the availability of resource/technical capabilities to fulfill the terms of the contract, or of the company’s experience in conducting similar transactions previously, will help prove intentionality.

Question 2. Which persons can be held criminally liable for fraudulent activities in business?

Answer: Firstly, the defendant must have the status of an individual entrepreneur. It may also be a manager or member of the company's management board, or a person holding the position of general or executive director.

Question 3. Is partial fulfillment of obligations an argument about the absence of corpus delicti?

Answer: In judicial practice, partial fulfillment of obligations under a transaction is most often considered not as evidence of a lack of intent to cause damage, but as an attempt to convince the other party of a good faith intention to fulfill its obligations in full. Typically, evidence of such behavior is provided by documents confirming that the perpetrators deliberately stopped any actions under the contract after fulfilling part of the obligations without good reason.

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Lending fraud

A frequent problem, along with the development of consumer lending, has become fraud in the credit sector, which involves issuing a loan agreement or receiving funds without the intention of returning them. In order for the court to recognize the failure to return funds to the bank as banking fraud or fraud in the field of lending, the following signs must be simultaneously present when committing a crime:

• premeditated intent to not repay funds already upon concluding a bank loan agreement;
• providing a bank employee with knowingly false or unreliable information about the borrower and his solvency, deliberate misrepresentation;
• lack of a real opportunity to repay the debt or, in the case of legal entity borrowers, instant cashing out of loan amounts, their misuse.

Thus, A. Esin, a borrower from Promsvyazbank, was recently arrested in connection with a criminal case. Investigators found that he had intent to commit theft of bank funds and intentional non-repayment of loan funds received for companies controlled by him. Loans in the amount of 500 million rubles, based on the position of the investigators, were not used for business needs. The defendants “disposed of the money at their own discretion.” The total amount of unreturned funds exceeded 4 billion rubles. Such high-profile cases are more common among problem banks; most attempted credit frauds are committed in the field of consumer lending. The most common types of it are issuing a consumer loan for a small amount to purchase goods in a store, in which the borrower is checked using scoring programs based on the information provided by him, and car loans, as a result of which the car - the collateral - is allegedly stolen. In the second case, the risks are borne by the insurance company.

But recently a new type of fraud has appeared with money from both banks and clients at the same time. Investment companies that have appeared and do not have a license to operate in financial markets offer pensioners to take out loans and give them money to manage, offering high income. Such companies rent offices in prestigious business centers and use aggressive advertising. As a result, both clients, who lose their money to the scammers, and banks also become victims. If banks have the opportunity to recover their funds by bringing pensioners to court, then the victims are unlikely to see their money when the investment company disappears along with the office.

Investigating credit fraud and recovering funds in cases where the perpetrators of the crime are trained professionals requires the highest qualifications from both bank security officers and law enforcement agencies. At the moment when it is clear that the funds will not be returned to the bank, when a criminal case is initiated, they end up being transferred, sometimes abroad, and legalized, and the companies go bankrupt. At the same time, the peculiarities of the functionality of security services do not allow them to understand the intricacies of financial schemes; investigative authorities also do not yet have extensive experience in investigating this type of crime, especially when the traces of stolen money lead abroad. It is necessary to order complex examinations and establish a chain of connections in order to prove the presence of intent to commit fraud. How deeply bank employees are involved in a particular fraud will determine how well the evidence of intent is hidden. Any deliberately prepared scheme can be attributed to a financial crisis or difficult life circumstances, but evidence of collusion with bankers will help eliminate the court’s doubts about the presence of intent to steal.

The ways to seize other people's money, related to deception and abuse of trust or using modern technical means, are diverse. You can protect yourself from them only with absolute care. You should not fall for the tricks of scammers.

Motive, purpose, emotions

Since fraud is one of the types of theft, the following conditions regarding the subjective side of the composition apply to it :

1. Motive. Usually it is self-interest - however, we must remember that this is far from a mandatory factor.
   “Noble fraud” is also quite possible, when the criminal, although he takes possession of other people’s valuables through deception or broken trust, then does not use them himself, but transfers them to someone free of charge. In particular, in the practice of investigating criminal cases, there have been situations when, when committing fraud with complicity, one of the group members voluntarily renounced his share in favor of an accomplice (for example, if he urgently needed money). Fraud did not cease to be a crime, but there was no mercenary motive in the actions of this person.
2. Target. It is precisely the alienation of someone else's property or the acquisition of rights to it. The purpose of this crime is always selfish.
3. Emotional-volitional part. In order to qualify a crime as fraud, it is necessary that the perpetrator is aware of all the essential aspects of this crime. This means that he must know that he is appropriating other people’s values ​​for free, and also using lies or using trust for evil.