Apgaulės samprata ir reikšmė atribojant sukčiavimą ir civilinės teisės pažeidimą
The author examines the main feature of crime, determined in Article 182 (fraud) of the Criminal Code of the Republic of Lithuania, the way of committing this crime. The article gives some different definitions of the deception, generalizes the variety of it features. We can see that the definition of deception is not permanent, ob the contrary, it changes according to historical perspective together with the life of society and with technological progress. After summarizing various positions about deception, existing in the literature of criminal law of Lithuanian and foreign countries, the author defines deception from a new point of view, which is actual and contemporary. Also the article analyses new types of deception, which are not in line with the old definition, for instance, electronic system deception, third person deception or deception of third parties. The author points out the importance of these new types of deception in understanding the existing definition of deception. The need to change definition is explained. Next the article discusses deception, when the criminal uses false intentions: the author recognizes such way of fraud as positive. The author reviews the problems of abusing trust, as the way of committing the fraud. In spite of some different opinions about this way, the author suggests that abusing trust should not be explained as a substantive way to commit the fraud. Finally, the focus of the article is in finding the dividing line between fraud and tort. The author collected court and pre-trial institution decisions, analysed them and highlighted the mistakes in court decisions as well as positive court practices. The article concludes in proposing key criteria which can help to separate fraud from tort: a) substantial deception; b) aggravating the position of a creditor; c) the criterion of attentive and a careful victim. These criteria could be used in Criminal Law theory and court decisions to strengthen the motives for determining criminal liability.
- Straipsniai / Articles