Jurnalul de studii juridice supliment 4-2012 - Editura Lumen

THE OFFENCE OF CHECK FRAUD...does not exist- should submit the check to criminal prosecution bodiesand should request his punishment. 10d) What if the check beneficiary was aware of the lack of provisionfrom the very beginning, can he still be considered deceived?According to the principle regarding the freedom of the juridicalact, the parties may conclude any civil juridical act and they may give tothe respective act whatever content they may desire. As long as the checkbeneficiary accepted the contractual terms, respectively the receipt of acheck note as a collateral signed and filled in by the issuer in the absenceof cash in the account, the beneficiary can no longer claim that he wasdeceived by his co-contractor. We appreciate that the incident cannot betransferred in the criminal field as long as, since the beginning, the checkbeneficiary accepted the possibility to face the issuer’s insolvency. Inconsideration of this situation, two more frequent situations can be largelyidentified in the current practice, namely:a) The deed perpetrated by a person – an authorizedrepresentative of an economic agent- which issues a check for thepromissory payment of the goods delivered by another economic agent(injured party), and which does not have, at that time, the requiredprovision, in the account opened with the banking institution onto whichthe check was drawn or which withdraws the cash, until the submissionfor payment of the respective check. In this situation, we are dealing withthe crime of fraud incriminated by the provisions of Art. 215 paras. (3)and (4) of the current Criminal Code. This is the typical case of the activesubject of the crime of check kiting, who –acting from the start in an10 In a specific case, it was retained that the defendant, twice during the perpetration ofthe same criminal resolution, procured goods from a business company and issued twochecks, being aware that he did not have the provision required for covering the price.The evidence revealed that the administrator of the supplying business company wasaware at the time when the checks were issued that such checks had not cover, andaccepted to receive them as collateral, agreeing to submit such checks to the bank afterone month, when, according to the defendant’s statements, the bank account shall havebeen replenished. On the very day when the checks were submitted to the bank forpayment, the defendant withdrew, however, almost all the money he had in that account;in this way, proof was made of his misleading intention and of the perpetration of thecrime provided by Art. 215 paras. (2) and (4) of the Criminal Code, in the variantaccording to which the provision was withdrawn after the checks were issued. Duringthe judgment, a debate took place regarding the legal classification under the crimeprovided by Art. 84 para. (1) item 2 of Check Law No. 59/1934; however, this solutioncannot be accepted, because the defendant’s intention to deceive the injured party can beclearly noticed.221Copyright Jurnalul de Studii Juridice, Editura Lumen