Civil redress is simply a common business practice. Creditors frequently take different actions to motivate debtors to pay their debts more quickly. However, erstwhile a creditor exceeds the limits of the law by threatening the debtor with criminal proceedings to force payment, he may himself be subject to criminal liability.
Offence of fraud in the context of the recovery of claims
In accordance with Article 286 of the Criminal Code (k.k.), the offence of fraud is to bring another individual to an adverse regulation with his or her own property by misleading it, utilizing an mistake or inability to decently realize the action taken. In practice, this means that the offender must act in order to get a property benefit, utilizing a lie that will prompt the victim to take an adverse property decision.
However, as confirmed by the ultimate Court (SN) in its order of 24 January 2018 (file number II KK 448/17) in order to delegate work for fraud, it is essential to establish the alleged direct directional intent. In practice, this means that the intent to cheat must be as shortly as the debtor has entered into a commitment. It is not in any situation where the debtor fails to fulfil the benefit, so fraud can be referred to. The ultimate Court has clearly stated that "not everyone's failure to comply with a civilian contract can be attributed to fraud offences".
Evidence and findings in the event of fraud
The case law underlines that it is essential to prove that the offender, erstwhile applying for a loan, credit or another benefit, acted with the intention of not returning or failing to repay it. The fact of debt alone is not adequate evidence of intent to extort. In its judgement of 3 April 2007 (Event No III KK 362/06), the ultimate Court indicated that ‘the specified agreement of the perpetrator that the undertaking entered into may not be executed in the future is not a adequate condition to consider that fraud has been committed’.
Furthermore, the subsequent failure to fulfil the civilian law obligation, even conscious and deliberate, cannot be automatically treated as evidence of fraudulent intent. In its order of 17 January 2012 (Event No IV KK 344/11), the NS noted that ‘later failing to comply with the civilian law obligation, even consciously and intentionally, unless it belongs to a set of circumstantial circumstances indicating the first intent of the fraudulent perpetrator, cannot give grounds for attributing criminal liability for fraud’.
Principle of subsidiarity of criminal law
The rule of subsidiarity of criminal law, frequently referred to as ultima ratio, plays a key function in the context of redress. Criminal law is simply a definitive measurement only if another areas of law do not offer adequate means to defend legal interests. As Octavia Górniok pointed out, “criminal law should be applied as a last hotel only if another areas of law (...) do not have adequate resources to prevent behaviour likely to harm legal goods” ‘The importance of the subsidiarity of criminal law and its interpretation’ [in:] State and law 2007, pp. 5, p. 49).
In practice, this means that criminal authorities may dismiss the case, considering that the dispute between the parties is mainly civilian and that the injured organization has effective civilian protection.
The Effects of False Crime Notice
A creditor who submits a notification of a crime only to motivate the debtor to pay the work shall be liable to criminal liability. Pursuant to Article 238 k.k., it is criminal to notify law enforcement authorities of a crime which has not actually been committed, with the alerter aware of the deficiency of grounds for prosecution. This offence is deliberate and the motivation of the perpetrator, though it may be malicious or due to the desire to force certain actions, is irrelevant to criminal liability.
Liability for unlawful threats
In the context of redress, it is besides worth remembering the provision of Article 191 k.k., which penalises the usage of an unlawful threat in order to force a circumstantial action. Under the criminal code, the threat of criminal proceedings is besides unlawful. A creditor who tries to extort a debt by threatening to notify the debtor of a crime may so be put under criminal liability for the usage of an illegal threat.
Summary
The conclusion of the above considerations is clear: it is not worth threatening debtors to initiate criminal proceedings against them in order to enforce payment of their obligations. specified actions may not only neglect to deliver the expected results, but besides lead to the criminal liability of the creditor. Criminal law, as an ultima ratio, should only be applied where another legal protection measures are insufficient. Otherwise, alternatively of solving the problem, the creditor may face serious legal consequences.
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