2 August 2021

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Fraud - what to watch out for, how to defend yourself?

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When it comes to fraud, victims feel helpless and don't always know how to cope. They do not anticipate that instead of support they may fall victim to another fraud, and that from the people on whose help they counted, that is, lawyers and legal advisers.

Types of law in the Polish legal system

When such a situation occurs, the chance to recover money is irretrievably lost. Additionally, the deceived person makes himself ridiculous in the eyes of his opponents, whom he accuses, and cannot defend himself properly. This often results from the fact that the law is not uniform. There are different branches of law: civil, criminal, administrative, European. Each of these branches is additionally governed by separate, specified rules and a separate method of interpreting regulations, i.e. interpreting them.

Most advocates and legal advisors are civilians. This means that they specialise in the most common application of civil law. This is known as "soft" law, and refers very broadly to the principles of social and socio-economic coexistence. Civil law allows the use of analogy if there is a gap in the law. The term "analogy" is used here to refer to other circumstances regulated by law.

In contrast to civil law, criminal law is "hard" law. In accordance with the principles set forth in the Polish Constitution, the elements of a crime must necessarily be specified in criminal provisions. Possible "loopholes" cannot be used to the advantage of the suspect on the basis of other, similar provisions, or the moral judgment of the judge or prosecutor. The operation of criminal law is based on the principle of "in dubio pro reo", that is, any doubt is resolved in favor of the accused.

Mismatch between lawyer and case - common problems

Where does the problem lie in this respect? Solicitors and barristers who specialise in civil law try to pass off the rules of civil law as an interpretation of criminal law, and in so doing only harm their clients. What is harmful and damaging to the opponent in a civil trial, is usually proof of his innocence in a criminal case! A badly prepared complaint to the prosecutor's office is not only ridiculous, but it is also a missed opportunity to recover money. An inaccurate report can sometimes permanently block the opportunity to bring the fraudster to justice in court!

What is fraud in Polish law?

This happens very often. In what way? Fraud, or even more specifically the crime of fraud, is defined by the Criminal Code and its Article 286, which states that it is an intentional crime. This means that fraud can only be committed with direct, deliberate intent. It cannot be committed "incidentally". To illustrate this situation: the murder of a person is possible with an eventual intent, i.e. dolus eventualis, i.e. I shoot with a firearm, if I hit someone, I kill them, if I don't hit them, that's fine too. In the case of fraud such an attitude practically excludes the commission of a crime. This means that you cannot cheat anyone because of lack of knowledge, negligence, or lack of prudence. In order to commit fraud, the intention to defraud must be guided from the outset, i.e. it must be planned and executed to the detriment of the other person. This in turn is connected with the fact that not every unreturned or unpaid invoice or loan is a crime. More often than not it is not. To prove that fraud has occurred it must be shown that the other party had no intention of paying at the outset of the joint action. This itself is the opposite of a civil action, where fraud is proven so that someone did not wire the promised money.

Why don't civilians win?

How does it happen that civilians can't recover money with a prosecutor early on? This is because the lawsuit is created like a regular civil suit for payment. Civil proceedings require proof of a legal, factual relationship linking the parties, underlying the claim, e.g. sale-purchase agreement, rules of cooperation, course of cooperation, lack of settlement. Such an approach to a case results in proceedings either not being instituted by the prosecutor's office, or being quickly discontinued. This is the result of the fact that, according to the case law of the courts, one cannot speak of fraud, if the debtor has partially repaid the debt, even by a small amount, if he previously fulfilled the agreement, if he entered into a dispute as to the legitimacy of the claim, lodged a complaint, went bankrupt or otherwise expressed his good will. When one entrepreneur is harmed by another, the so-called economic risk also works to the disadvantage of the injured party. When granting, for example, a trade credit, one must take into account the fact that it may turn out to be a flop; this is a risk connected with conducting business activity. If the counterparty has not deliberately and clearly misled the customer when granting credit, then this cannot be called fraud. This situation is one of the most common reasons for write-offs. Additionally, it has contributed to the creation of numerous wickets.

What in the case of a civil lawsuit for payment is its main content, in the case of the initiation of an investigation may immediately lead to its non-initiation. This forces the action to be more specific: to highlight and find out what the modus operandi of the fraud was, to point to specific case law and legal and criminal analyses of a legal nature, to find evidence of misconduct, and to point to further circumstances relevant to the case. This increases the chances of recovering the money and punishing the fraudster.

It is also a good idea to think about pushing the "scam" by force, as this may yield better results. It is clear that anyone who has not received their money will not feel good about the fact, but sometimes it is better to compromise. Especially since the common understanding of fraud is not entirely compatible with its content in the Criminal Code. The discomfort of feeling cheated is also not the same as being a victim of fraud or being able to prove it in court. It is better to consider whether the dishonest business partner should be charged with such offences as misappropriation, crimes to the detriment of creditors or mismanagement. After all, what does it matter under what article the fraudster will be punished? The important thing is that he will be punished.

It is also important to distinguish a civil lawyer from a criminal lawyer, to avoid problems. How to do it?

How to choose a lawyer who will not cheat?

The first thing you need to pay attention to is the practice conducted by him. If he independently deals with civil, economic, family and administrative cases is the first sign. Probably such a lawyer does not have time to specialize in difficult and demanding criminal law, and especially to specialize in economic crimes, which include fraud.

The second sign that it is better to look for someone else is the moment when from his mouth falls the phrase "evident fraud". There is no such thing in criminal business.

The third warning sign is when the lawyer claims that he has "connections" in the prosecutor's office and thanks to that the case will gain momentum faster. Not only is this criminal, but it is also a lie. A dishonest lawyer usually loses nothing. If the case fails, he thinks that others have a stronger "back". If the case succeeds, then he will value his services higher. The client, on the other hand, will not be able to complain to anyone about the inflated price, because attempted corruption is a crime.

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