Phishing loan – is it a crime?
Formalized procedures for granting loans or cash loans in banks mean that not everyone has the opportunity to incur such an obligation. Then you may be tempted to fake a contract of employment or income statement and forge the signature of an employer or other third party. Sometimes it also happens that a person has the necessary creditworthiness and willingly uses it, but from the beginning, he is not going to pay off the liabilities. In both cases described there is a crime of extortion. What exactly is it, what is the risk of committing it to the cheater and who in this case is the victim? We will answer these questions in this article.
What is the crime of extorting credit?
The crime of extorting credit is a financial crime, otherwise known as capital or business fraud. In addition to leading another entity to an unfavorable regulation of its own or someone else’s property, the offense also consists of not informing the financial institution about the increased risk of the beneficiary’s insolvency. It should be remembered that art. 297 of the Penal Code is a development and specification of art. 286 of the Penal Code regarding economic fraud.
The provisions of art. 297 of the Penal Code were introduced to make it clear that such good as financial fairness and mutual trust of its participants are subject to special state protection. The subject of the extortion may be all types of financial instruments, in particular loans, borrowings, guarantees, letters of credit, grants, subsidies, and public procurement. The crime of credit fraud can be committed by any person capable of criminal liability, i.e. by anyone who was at least 17 years old at the time of committing the crime and was in full mental strength.
In turn, the so-called subject of the crime may be counterfeit, altered, certifying untruth or unreliable documents (including a written statement). According to the position of the Court of Appeals in Katowice of 15 June 2016 (file reference number II AKa 160/16), only documents that would not be possible to obtain a financial means, regardless of their content, may not be the subject of the crime, not all documents submitted to the bank.
The provision of art. 297 of the Penal Code does not penalize merely counterfeiting or altering of a document, but activities that involve the use of these documents (including written statements). This is due to the fact that capital fraud is a formal offense – it takes place irrespective of whether the loan was applied for by the perpetrator or the bank rejected his loan application. It does not matter whether the beneficiary of the loan would be the perpetrator himself or another third party.
Importantly, this type of crime is not affected by the perpetrator’s intention to pay off the obligation contracted with the financial institution. This means that the perpetrator cannot explain that he “pulled” reality to some extent by submitting the application in order to increase his creditworthiness, but he intended to systematically pay the debt. A person who, through his behavior, allows another person to obtain a loan, loan or subsidy, e.g. an employer, who presents an inflated employee remuneration certificate to increase his creditworthiness, commits a crime.
The counterfeit, forged document, certifying untruth and unreliable document
It is important to realize that economic fraud can involve various types of fraud related to the falsification of documentation. A capital offense may involve the use of both a counterfeit, forged document, false evidence and an unreliable document. – counterfeit document – a document which does not originate from the person on whose behalf it was drawn up;
– forged document – an authentic document, in which changes were made consisting in removing a fragment of the original text and replacing it with another text, making deletions or additions, aimed at changing the authentic content;
– document confirming untruth – a document which contains false information and has been issued by a public official or another authorized person;
– unreliable document – a document whose content contains false information or omissions that may be misleading.
Credit fraud and failure to notify about changes in the borrower’s financial standing
An offense under art. 297 § 2 of the Penal Code may not only involve the use of unreliable or false documents, but its features may also be fulfilled by the behavior of the beneficiary not informing the lender about a change in his financial situation. At the same time, it should be borne in mind that the offense of not notifying about the deterioration of the material situation will only take place if the financial institution imposed such an obligation on the borrower in the bank’s regulations or the loan agreement.
Who is the victim in a credit fraud offense?
Contrary to the general belief that the victim of capital fraud is the person on whose behalf the forged documents were submitted, e.g. the alleged employer who appears on the income statement of the person trying to extort a loan, only the financial institution can be the victim in such cases.
Protection under art. 297 of the Penal Code covers the property interests of entities providing financial instruments (loans, borrowings, guarantees, etc.). It is not a foregone conclusion in jurisprudence which financial institutions are subject to this protection since the scope of entities to which protection applies in this provision is open and requires an assessment of the nature of activities of the entities.
Certainly, banks, cooperative savings and credit unions and issuers of payment instruments can be mentioned. In addition, for a financial institution that is protected by the provisions of Art. 297 of the Penal Code, any entity authorized by law to perform even one of the banking activities specified in art. 5 paragraph 1 of the Banking Act.
Can a penalty for credit fraud be avoided?
In accordance with art. 297 § 3 of the Penal Code, shall not be punishable by anyone who before the initiation of criminal proceedings voluntarily prevented the use of received financial support or payment instrument, resigned from a subsidy or public contract or satisfied the claim of the injured party.
The legislator has introduced the so-called no criminal record. The condition of using it is voluntary prevention by the would-be perpetrator of using the funds received by the financial institution. This can happen, for example, by not accepting a loan, repaying the loan with interest or canceling the grant.
Phishing loan or credit – summary
Currently, credit fraud is the bulk of all capital crimes. Extorting financial instruments can be done by any documents confirming untruth about the applicant. It is not only about the level of earnings, but also about marital status, the number of liabilities incurred or the number of people who are dependent on the applicant.
It can be said with certainty that in practice the number of cases in the prosecutor’s office regarding frauds is only a drop in the sea of real problems. While it is easy to control a person seeking financial help when trying to extort a mortgage or a business loan, financial institutions are not able to verify the accuracy of the data submitted by applicants with the increasingly popular online loans.