OPENING A CRIMINAL CASE ON THE DEBTOR (ON FRAUD)

Opening a criminal case against a debtor (for fraud) is one of the fairly effective methods of collecting debt from a debtor, in particular, when the latter categorically refuses to repay the debt, or even denies the existence of a debt.

Also, the opening of a criminal case against the debtor on the fact of fraud is practiced when there are no proper debt documents, and the debtor refuses to repay the debt.

In this case, opening a criminal case against the debtor (for fraud) is one of the tools provided by the law, which, if used correctly, brings good results. This method of debt collection is used along with such methods as filing a lawsuit in court, imposing a notary's writ of execution.

The purpose of opening a criminal case against the debtor on the fact of fraud

Undoubtedly, the main goal of opening a criminal case against a debtor on the fact of fraud is to induce the debtor to return the funds received earlier. Naturally, when the debtor has nothing to settle with the creditor or the creditor does not have enough money to return, in this case, the purpose of opening a criminal case against the debtor on the fact of fraud will also be to bring the debtor to criminal liability with further punishment determined by the court.

It should be noted that the actual bringing of the debtor to criminal liability with further sentencing, which determines the measure of punishment, today is more rare than practice, due to a certain difficulty in proving the debtor's guilt under Article 190 of the Criminal Code of Ukraine "Fraud".

That is why the opening of a criminal case against the debtor on the fact of fraud is a tool to induce the debtor to return the funds received earlier under fear of negative consequences in the form of a sentence in a criminal case.

When used correctly, an open criminal case against a debtor brings good results in debt collection, especially when there are no debt documents.

Is it difficult to open a criminal case against a debtor for fraud?

It would seem that there is nothing complicated in opening a criminal case against a debtor on the fact of fraud. Indeed, according to the current criminal procedural legislation, the investigator or prosecutor is obliged to accept a statement of a criminal offense and within 24 hours to enter statements into the Unified Register of Pre-trial Investigations (ERDR) and immediately begin a pre-trial investigation. Such provisions are described in Article 214 of the Criminal Procedure Code of Ukraine.

At the same time, as practice shows, it is really problematic to achieve a real entry of statements into the Unified Register of Pre-trial Investigations (ERDR), that is, to open a criminal case, for serious crimes, not to mention fraud.

This situation is caused by a heavy workload of the law enforcement system due to a shortage in the ranks of law enforcement officers, and, accordingly, the unwillingness to investigate criminal cases with a crime that is difficult to prove.

When filing a statement on the fact of fraud, an ordinary citizen with a 90% probability will face a formal refusal of a law enforcement agency to initiate a criminal case on the fact of fraud, for example, on a receipt, with the motives of having civil law relations. Simply put, a law enforcement agency, without conducting an investigation, will establish the absence of a criminal offense in the actions of the debtor. Is it correct? Rhetorical question...

Simply put, it is extremely difficult for an ordinary person who is unfamiliar with criminal procedural legislation and the peculiarities of investigating economic crimes to open a criminal case against a debtor for fraud.

The role of a lawyer in opening a criminal case against a debtor for fraud

It will not be difficult for a lawyer practicing in criminal proceedings to open a criminal case against a debtor for fraud, as well as, in the future, to accompany him in the interests of a creditor who is a victim of a crime.

At the initial stage, it is important to correctly draw up a statement about a criminal offense, which includes a detailed description of events in chronological order, a description of the objective side of criminal acts, the place and method of taking possession of the property (money) of the victim, and preliminary legal qualification of criminal acts.

It is important to remember that not every statement is a statement about a crime. In the future, the investigating judge pays special attention to the form and essence of the statement about the crime, who will consider the complaint about the inaction of the investigator or the prosecutor for not entering statements into the ERDR.

As a matter of fact, the next action, after filing an application with a law enforcement agency, which will be carried out by a lawyer to open a criminal case against a debtor for fraud, will be to appeal to the investigating judge with a complaint about the investigator’s inaction on the fact of failure to enter statements into the ERDR on the basis of a statement of a crime previously filed by a lawyer .

Statistics show that the bulk of such complaints are satisfied by the court, as a result of which the investigating authority is obliged to enter statements into the ERDR, that is, to open a criminal case, which in the future will allow more effective interaction with the debtor in order to return the funds.