The Offence of Check Fraud - A Reason to Prevent Business –
The Offence of Check Fraud - A Reason to Prevent Business –

Summary/Abstract: According to Art. 215, para. 4 of the Criminal Code, the cheque fraud offence shall be the issuance of a cheque to a credit institution or a person, knowing that, for its capitalization, there is no necessary provision or coverage, and the deed of withdrawing the provision after the issuance, in total or in part, or of prohibiting the drawee from paying before the expiry of the submission term, for the purpose of obtaining an unfair material advantage for itself or for another, if a damage was caused to the cheque holder. In judicial theory and practice, examining the features of the cheque as a commercial title to order including an abstract obligation to unconditionally pay an amount of money at sight, they noticed that some of its features are common to other titles or commercial papers, such as bill of exchange and promissory note. Therefore, they have often thought if the lawmaker forgot to include them in the above mentioned text or if they deliberately took into account only checques as payment tools. Starting from the analysis of the cheque fraud offence, we will set out at length the arguments against the assimilation of the bill of exchange and the promissory note to a checque – as payment tool – considered by the text of Art. 215, para. 4 of the Criminal Code. We will also set out the different ways in which the courts have regarded the legal status of the deed of checque kiting (issuing rubber checques), emphasizing the opinions expressed in the legal doctrine regarding such legal status.

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