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Pavel Berzin
Bank Computer Crimes Classification
Article 200 of the current Criminal Code of Ukraine (further – CC) provides for the amenability for illegal actions with documents for remittance, payment cards and other means of access to the bank accounts, and with the equipment for their producing as well. Qualified kinds of corpus delicti are committing the above mentioned actions repeatedly or after preliminary conspiracy of a group of people joined in.
Increased social danger of this crime is determined first of all by the following factors.
Firstly, the piracy with documents for remittance, payment cards and other means of access to the bank accounts, and with the equipment for their producing causes considerable damage not only to the bank system of Ukraine but badly makes a negative influence on the performance of the whole economic state system. The cash assets made by means of the use of the forged documents are remitted abroad where saved on illegally opened accounts. Thus, besides sheer loss caused by the illegal actions with the mentioned objects, national state interests are as well greatly damaged in the way of precipitating the inflation process, depreciating the national currency [1], that may result in “rendering lifeless” of a financial and bank system.
Secondly, criminal activity in this direction can be characterized by its diversity, high-intellectual character, criminals’ quick adaptation to the new forms and methods of management, that allows to define the criminal cases of these crimes as the category of certain complexity and demands that practically-skilled officials should have some additional knowledge and facility.
Thirdly, the negative influence of such actions as falsification of documents for remittance, payment cards, other means of access to the bank accounts, as well as their acquiring, saving, conveying, transmitting with the purpose of selling off the forged documents for remittance, payment cards, their using and selling reflects on the established order of production, use and circulation of these objects, which provides normal functioning of the whole bank state system.
The danger of such criminal actions to considerable extent is determined by the fact that forged documents are the means of committing the crimes or keeping back other crimes, in particular, looting of alien property, legalization of cash assets, etc.
So it is worth consenting with A.Reshelyuk who considers that immediate object of the crime provided by Article 200 CC is an established order of producing, using and circulating documents for remittance, payment cards or other means of access to the bank accounts, which provides normal functioning of the Ukrainian bank system [3].
The subject of this crime is 1) any means of access to the bank accounts when committing the crime in the form of their counterfeit; 2) forged remittance documents or forged payment cards when committing the crime in the form of their acquiring, saving, conveying or transmitting with the purpose of sale, and in the form of their using or selling as well [4].
Two types of means of access to the bank accounts immediately mentioned in disposition of Part 1, Article 200 CC are remittance documents and payment cards. The title of Article 200 CC includes one more subject of the crime – the equipment for processing the means of access to the bank accounts that is the circle of subjects of the crime is described wider in the article. In opinion of P. Andrushko if there is a discrepancy in describing some special features of a crime (that is the names are narrower in their content), then features of the crime must be defined in accordance with their description in the disposition part. In the description of the crime subject stipulated by Article 200 CC involving the title of the article and its disposition of Part 1 a contrary discrepancy may be found out that is the subject of the crime in the title of the article is defined wider. Taking into consideration the principles of interpreting the criminal and legal regulations, the equipment for producing the means of access to the bank accounts is not a subject of the crime stipulated by Article 200 [5].
In our opinion, the equipment for producing the means of access to the bank accounts is a complex category which is to represent making the remittance documents [6] (in the paper or electronic view), payment cards and other means of access to the bank accounts. There are two groups of such equipment: 1) availability of hardware, 2) availability of software tools.
Hardware is regarded as technical means used for data processing and transmitting: mechanical equipment, electric and electronic equipment applying with the purpose of data processing and transmitting. Hardware are the following means: AEC (automated electronic computer) (including a server, a personal computer), the peripheral equipment, physical computer information carriers including software (systems, application, tool programs) and computer information. Software tools are regarded as objective forms of data and orders meant for computer functioning and computer devices with the purpose of getting a definite result and also data and audiovisual images stated on the physical carrier and received in the process of their working out [7]. Software tools can be considered as a part of a computer system and an independent object as well for which a computer is an enclosed (peripheral) environment. Indeed, the question appears - what are the very actions connected with equipment for producing the means of access to the bank accounts are regarded by a legislator as illegal? It is evident that one can proceed from the viewpoint that acquiring, saving, conveying, transmitting and using the above mentioned equipment for producing such means, in accordance with Article 14 CC may be considered as preparing for a crime. That is a person adapts such technical means for producing the mentioned objects by means of accomplishing certain technical operations with regard to putting such an equipment in order, using electronic machinery, etc.
Means of access to the bank accounts (in Item 131 Article 1 of Law of Ukraine “About Payment System and Money Order in Ukraine” of April 5, 2001, ¹ 2345-III [8] they are called payment tools) are the means of definite form in paper, electronic or other view of information carrier, the use of each initiates money order from the corresponding account of a payer. Banks in Ukraine in compliance with Part 4 Article 51 of Law of Ukraine “About Banks and Bank Activity” of December 7, 2001, ¹ 2121-III [9] (further – the Law of December 7, 2001, ¹ 21220III) may use payments orders, payment requirements, requirement-order, bills of credit, cheques, bank payment cards and other debit and credit payment tools as means of access to bank accounts, which are applied in the international bank practice. They must be properly drawn up and contain information about their office of issue, payment system they are used in, legal grounds for accomplishing a clearing transaction and, as a rule, about the holder of a payment instrument and a receiver of means, the date of valuing, and also the information necessary for carrying out a clearing transaction, that absolutely correspond to the instructions of account owner or other clearing transaction initiator stipulated by legislation ( Part 5 Article 51of Law of December 7, 2001, ¹ 2122-III). Two types of access to the bank accounts that is the remittance documents and special payment means are immediately mentioned in the disposition of Part 1 Article 200 CC.
The definition of the notion “remittance document” is given in the comment to Article 200 CC. It is a document in paper or electronic view which is used by banks or their clients for transfer of orders or information for money order between subjects of money order [10] (clearing documents, documents for ready money order and also those which are used when carrying out the interbank remittance and payment order, etc). In item 1.6 Article 1 of Law of April 5, 2001, ¹ 2346-III it is determined that remittance document is an electronic or a paper document used by banks, their clients, by banks, their clients, clearing, acquiring or other establishments-members of payment system for transmitting the order for remittance.
The document for remittance may be of paper or electronic view. The electronic document is of the same legal effect as a paper document (item 18.1 Article 18 of Law of April 5, 2001, ¹ 2346-III). The electronic digital signature on an electronic document has the same legal effect as the signature on a paper document has. The responsibility for authenticity of the information included in essential parts of electronic documents is held by a person who signed this document with an electronic digital signature (item 18.2 Article 18 of Law of April 5, 2001, ¹ 2346-III). The electronic digital signiature is an obligatory essential part of an electronic document. Electronic document for remittance, which is not attested by an electronic digital signature, is not taken to the execution (item 18.3 Article 18 of Law of April 5, 2001, ¹ 2346-III).
Pay documents is a remittance document used for initiating the money order from payee’s account or to the recipient’s account. The pay document of an appointed size including fixed essential parts and holding the information about the circle of means has a form of electronic records and necessarily has a cryptographic protection of information, it is transmitted by the methods of telecommunication and saved on the outer methods of information saving in the way of a file (passage 31, item Regulations about interbank calculations in Ukraine approved by Enactment of Managing NSU (National Security of Ukraine of December 27 , 1999, ¹ 621 [11]). One of the kinds of pay documents is clearing cheques. They are paper pay documents containing an unreasonably-determined payer’s order of the bank which renders a service and remits money order in favor of a recipient stated in it.
Special payment means is a payment tool performing a function of an identification method by means of which the holder of this tool initiates remittance from an appropriate account of a payer or a bank and other operations provided by a corresponding treaty (Item 1.14 Article 18 of Law of April 5, 2001, ¹ 2346-III) are fulfilled as well. By means of special payment means the documents are made after the operations as applied to special payment means or other services are rendered to holders of these means. Special payment means may be of any form on any medium but paper one, that enables to save the information asked for initiating the remittance. Such a means may be carried over to a property or provided with use by a client in the order determined by a treaty (Article 14 of Law of April 5, 2001, ¹ 2346-III).
Another special payment means is payment cards. A payment card is a special payment means in the view of an emitted plastic card in accordance with legally established procedure or a card of another view which is used for remittance initiating from a payer’s account or from a corresponding bank account with the purpose of paying goods and services cost, transfer of means from own accounts to other persons’ accounts, receipt of cash money in bank’s cash offices, at curre4ncy exchange offices of authorized dealers or through cash dispensers and performing some other operations provided by a corresponding treaty. Within Ukraine they use payment cards emitted by banks-members of inner payment systems and also payment cards emitted by banks (residents and nonresidents of Ukraine) that are the members of international payment systems. The procedure of using the plastic cards of international payment systems within Ukraine is determined by Regulations about Introducing the Plastic Cards of International Payment Systems into clearings for goods, rendered services and in cash payment approved in regulations by NBU (National Bank of Ukraine) Administration of February 24,, 1997, ¹ 37 [12].
According to regulations item 27.3 Article 27 of Law of Ukraine “About Payment Systems and Remittance in Ukraine” of April5, 2001, ¹ 2346-III banks make interbank remittance on the grounds of interbank clearing documents. Interbank clearing document is a document for remittance formed by a bank on the basis of clearing documents given by clients, documents for cash money order, and also commissions about a contract write-off provided in treaties drawn up between clients and banks serving them ( item 1.19 Article 1 Law of April 5, 2001,¹ 2346-III).
Interbank remittance is accomplished in the following ways: 1) registering the sum of money order through the correspondent accounts opened by banks in NBU; 2) registering the sum of money order through the correspondent accounts opened by banks in other banks or in a clearing bank.
Interbank remittance is accomplished in the order defined by regulations of corresponding interbank payment system (item 27.1 Article 27 of Law of April 5, 2001, ¹ 2346-III). Payment system is a payment organization, members of payment system and total of relations that appear between them when making money order. Remitting money is an obligatory function that a payment system is to accomplish. There is a an interstate payment system (a payment system where a payment organization is a resident and it fulfils its activity and provides money order only within Ukraine) and an international payment system (where a payment organization may be a resident as well as nonresident and it fulfils its activity within the territory of two or more countries and provides money order from one country to another).
Interbank remittance between banks-members of payment systems in operations with special payment means fulfilled by their holders within Ukraine is accomplished only in Ukrainian currency regardless of the currency the account is established in.
The interbank remittance between banks-members of international payment systems on operations with applying special payment means realized by their holders outside Ukraine, and also on operations realized within Ukraine by holders of special payment means that is by the non-residents of Ukraine, is carried out in the currency, defined in the applicable treaties with payment enterprises of international payment systems.
Making interbank money order at contractual write-off is carried out by banks on the bases of interbank clearing documents which are settled on the following ground: 1) orders on a contractual write-off provided in the agreements contracted between the clients and banks serving them; 2) payment orders introduced by recipient.
From the objective point of view the crime expresses in: 1) making any counterfeit means of access to the bank accounts or 2) carrying out: à) an acquisition, b) saving, c) transporting d) transferring with the purpose of selling the counterfeit remittance documents or payment cards, or 3) using or selling the counterfeit documents or payment cards. From the moment of carrying out above mentioned operations the crime is considered to be finished.
A counterfeit of access means to the bank accounts should be regarded as any operations resulting in making counterfeit remittance documents, payment cards or other means to the bank accounts including falsifying applicable subjects owing to which illegal money order may be accomplished with their applying and unauthorized representative on this face receives the access to information concerning the definite bank account.
Acquisition of the mentioned subjects is obtaining of the property right on them by any method: the purchasing, interchanging, receiving the debt in the way of a gift or paying the debt, getting payment for the given services or executed operation, deriving in a loan, looting such subjects.
Saving is a fulfillment of any intentional operations connected with an actual possession by such things, regardless their location: taking it by oneself (in clothes, suitcase etc.), putting them in a depository, any transporting or any other selected and known place. The condition of saving is a possibility to have a free access to the remittance documents and payment cards, and also at any moment to commit with them other malpractices: a further counterfeit, transporting, transfer, selling.
Transporting is transference of the counterfeit remittance documents and payment cards by transport from one place to other both within Ukraine, and beyond its bounds. At that it is no importance whether the person is an owner or user of transport facilities, for example, a passenger; so such transporting immediately is carried out by a person or another means. The method of transportation of the indicated subjects, the distance they transported is no importance. Shifting of the indicated subjects from one place to another without using the transportation facilities is not regarded to be transporting. Such operations should be qualified as saving the indicated subjects.
Transferring of this crime subjects is considered to be their moving in space by posting, with a messenger from one place to another. At that the crime is regarded to be finished from the moment of dispatching a package, luggage, a letter etc. with the indicated subjects regardless of their addressee yawing them received or not [13].
Sale is meant to be any expropriation of the mentioned subjects that is the use as payment means, sale, interchanging, donation, transmission on credit and on account of the debt, loss in gambling games, etc.
P.Andrushko considers that a subject of such operations as "saving", "acquiring", "transporting", "transferring" and "selling" can be counterfeit documents for money order or payment cards and only those produced on a paper, plastic or other material information carrier [14]. So in his opinion the remittance documents can be a subject of the mentioned operations in case of their being produced on a material information carrier. This statement is impossible to agree with, for according to item 1.6 of Article 1 Law of April 5, 2001, ¹ 2346- ²²² the remittance document is an electronic or paper (italics are mine – P.B.) document utilized by banks, their clients, clearing, equaclearing establishments or other establishments - members of a payment system for transmitting the orders for remittance. It is concern of the cases when the remittance document in an electronic view is saved, for example, on a magnetic disk, compact disk, etc.
Using the counterfeit remittance documents or payment cards is accomplishing money order with their help from the corresponding payer’s account without his consent to any other account or receiving cash money resource due to counterfeit remittance documents.
From the subjective point the crime is characterized only by premeditated form of guilt, aspect of intent is direct. Motives and the aim may exist and they don’t influence the qualification of operation according to Article 200 CC, but they may be evidence in a guilty person’s activity of available signs of preparing for committing other more serious crimes, in particular, preparing for looting someone’s property.
The subject of a crime is a person attained 16 years old.The activity of an official in case of committing crimes provided by Article should be qualified in accordance with Article 364 CC in the presence of all other signs of the crime provided by it.
Having determined the corpus delict provided by Article 200 CC, we shall get down to separate problems of classifying such operations. Such problems are investigated according to several groups, in particular, 1) the qualification of malpractices with the remittance documents; 2) the qualification of malpractices with payment cards; 3) possible errors in the qualification connected with an erroneous estimation of the termination moment of criminal acts with the remittance documents, payment cards and other means of access to the bank accounts; 4) the qualification of such operations committed repeatedly and in the preliminary agreement of a group of people.
Problem of malpractices qualification with the remittance documents. As it has been indicated already the legislator (due to the notice to Article 200 CC) the remittance documents are meant to be a document in a paper or electronic view which is used by banks or by their clients for transmitting orders or some information on money order resources between the subjects of money order resource (clearing documents, cash money order documents, and also those which are used when accomplishing a interbank remittance and payment message, etc).
The peculiarity of such malpractices as a counterfeit, saving, acquisition, transportation, transfer and sales with the indicated subjects is that they make for reaching the basic criminal result, in particular, misappropriation of someone’s property, legislation of resources received in a criminal way, tax evasion, etc [15].
So, at the end of 1998 they exposed malefactors who had stolen more than 80 million gryvnas from the account of Vinnitsa regional control of NBU. In August, 1998 a mechanic of processing data sector " operational bank day" of the regional clearing house of Vinnitsa regional control of NBU Ê. together with the accessory Ð., director of one of Vinnitsa private enterprises made out the plan due to which Ê. an access to a bank computer web and undertook enumerations of 80 million gryvnas from the account of NBU. to the accounts of other financial enterprises. P. Was to find officials who would provide further money circulation, partial transferring them in a cash balance, conversion and transferring them to the overseas enterprises accounts. With the help of the counterfeit payment of documents Ê. at first planned to transfer money from the account «the emissive notes " to one of the internal accounts of Vinnitsa regional control of NBU. After that due to a banking operation he transferred this money to the accounts of the enterprises revealed by Ð. in other banks. Directly before committing a crime the swindler secretly copied out the information with a key electronic digital signature that belonged to the chief of interbank operations section of Vinnitsa NBU department.
Having chosen the right time, Ê. from the computer of the chief production manager entered a bank computer web. During three hours he conducted a great amount of banking operations. By means of a digital electronic signature enabling an access to the account the swindler transferred money to the account of a regional board, and after that to the accounts of the enterprises in other banks.
Nine Packets consisted of 18 separate dummy electronic payment documents were formed by him on a total sum 80, 435 million gryvnas. By the first document in each packet he executed interbank operation, and second – interbank operation. In the payment orders which were drawn up for imaginary validity of transferring resources, it was indicated that money is added on at the expense of fuels and lubricants oils supply [16].
Having analyzed this example, we can conclude the following:
1. In this case counterfeit of the payment documents was not only in the form of their counterfeit including forging the corresponding original documents causing illegal transferring of money resource (cash or non-cash).An unauthorized person obtains the access to information concerning the definite bank account.
2. The counterfeit can be accomplished with the help of a special hardware, computer software or in any other method (printing-in, reassuring, correcting in the paper documents). For example, by means of computer facility a person makes a digital electronic signature which provides an access to the bank account.
If the malpractices with the remittance documents are carried out by illegal interference into activity of computers, systems of computer webs, misdemeanor is qualified in accordance with certain parts of Articles 200 CC and 361 CC.
Classification of malpractices with payment cards (PC)
Distinguishing a full and partial counterfeit of the PC, the following should paid attention to. The greatest threat for financial establishments are completely forged PC. A method of fabrication such PC has been called "a white plastic ". On such a “white plastic” of the same size as PC there are dates of the account, the delivery date and information on the owner. Also there is a magnetic information carrier on it knowing PIN-code one can easily steal the resources from bank automatic machines by means of “a white plastic”.
The partial counterfeit of a PC is bound to: 1) the information variation of the PC magnetic carrier; 2) with the variation of the information extruded on face side the PC; 3) with the variation of a PC owner’s signature. Still actions were regarded as the fraud with the use of counterfeit PC as he in preliminary agreement with P. Using a counterfeit PK “MasterCard” stole a fax-machine in a shop (on total 930 gryvnas). It was found out that technical and criminalistics and lawful handwriting by expertise was established, that the counterfeit PC «Master Card " is changed by substitution of letters extruded on the PC. And by means of changing owner’ signature.
The last achievements in the field of microelectronics have provided further advancing the PC. The creation of microprocessors resulted in appearance of a start – card which has possibilities of "microcomputer" and can use some miscellaneous programs of working out the information in comparison with a lot of operations. The PC of such a type interacts with the system which reads out the information, ensures saving and information processing about a client, his financial state and all about his financial transactions. So, immediate changing of the microprocessor of such a smart - card or changing this very information of the information’s regarded a counterfeit [20].
The technology development of using PC corresponds to its technical improvements. And so-called debit PC has appeared together with credit electronic cards. They differ from credit cards by the following: client’s resources are reserved on his account and the name is entered on the PC.
They are written off from a card as far as they are spent. In this case a payment for granting credit by bank is not taken from a client. The financial transactions with credit cards are carried out by means of cash dispensers and payment terminals. According to item 1 Regulations about the Procedure of Payment Cards Emission and Carrying out Transactions with their Applying affirmed by the Resolution of NBU Board of August 27, 2002., ¹ 367 [21] a cash dispenser is a program and engineering complex which enables the payment card holder to be rendered a self-service of drawing up cash money, placing them to corresponding accounts, deriving some information concerning a state of his accounts and also to execute other transactions as for functional capabilities of this complex. The payment terminal is an electronic device that enables as a result of PC interaction to accomplish the authorization and form the payment checks in transactions using PC (see item 1 Regulations about an application of plastic cards of international payment systems in accounts for goods, given services and in drawing up cash affirmed by the Resolution of NBU Board of February 24, 1997, ¹ 37). The financial transactions carried out by cash dispensers are, as a rule, recorded on paper by means of two printers. One of them is used for a check which is given to a user with the indication of the sum together with money. Another one that can be located apart from a cash dispenser is an analogue of a control tape of a cash register and records all transactions. Moreover, to improve safety they apply the hardware methods of encoding the information a cash dispenser and PC exchange with, and also the information circulating between a cash dispenser and a central office.
Such hardware (correspondingly for drawing up and /or for remitting cash and /or cashless resources) is not a subject of Article 200 CC. However, swindles with the use of false cash dispensers and trade terminals occur in practice. Some cases are known when criminals settled false cash dispensers and accepted real credit cards, making a personal code (PIN - code) of them introduced by the user, and also available resources which the users tried to deposit through the cash dispenser to his account in a bank. When trying to draw up cash money from a cash dispenser there appeared a message that the cash dispenser did not provide denominations of necessary cost. The real cash dispensers next to it thus were out of order.
The similar actions subject to circumstances are necessary to qualify in the aggregate Part 3 Article 190 (as fraud committed by means of illegal transactions with the use of electronic computer) and corresponding parts of Articles 361 (as illegal interference in operation of computers, systems and computer webs) and/or 362 (theft, appropriation, extortion of some computer information or capturing by it in the fraud way or abusing office) CC. A person using a false cash dispenser (that is the system accomplishing automized data processing, consisting of technical means of their processing, methods, procedures, software) reads off PIN-code [23]. Interfering in other bank automatic machines operation disabling them the person changes or on the whole destroys the information that is why such actions should be additionally qualified in accordance with the corresponding part of Article 361 CC.
PIN- code is a secret code known only to a PC holder and necessary for carrying out transactions with a PC (see item 1 Regulations about an application of plastic cards of international payment systems in accounts for goods, given services and in drawing up cash affirmed by the Resolution of NBU Board of February 24, 1997, ¹ 37). Introducing the PIN-code provides an access of a PC user to drawing up a certain sum of cash, that is why the theft of such information or capturing by it in a fraud way is completely encompassed by Article 362 CC.
When committing a swindle with applying forged PC the guilty interfere in the operation of computers, systems and computer webs, their actions should be also additionally qualified in compliance with Article 361 CC.
Possible errors in the qualifications connected with an erroneous estimation of the moment a criminal acts termination with the remittance documents, payment cards and other providers to the bank accounts
The crime provided by Article 200 CC is considered to be finished from the moment of undertaking the malpractices with the remittance documents, payment cards and other providers to the bank accounts.
Law-enforcement bodies sometimes make errors bound with an improper estimation of the moment of such criminal acts termination. In the justice practice there are already some facts when the courts qualifying malpractices with the remittance documents, payment cards and other providers to the bank accounts, do not always pay into consideration their termination moment. Thus, in May 8, 2002 in the restaurant "I-Petrie" in Yalta the citizen of Odessa was detained when trying to pay for lunch with a counterfeit credit card of the company American Express in name of E.F. With regard to this fact the Investigatory department of Ministry of Internal Affairs (MIA) of Ukraine in the Crimea took criminal proceedings according to Article 15, Part 1 Article 190 CC. The detained man explained that his acquaintance, a citizen of the USA, had given the PC as a present to him. According to his words, the latter in his presence paid for purchases with the card and consequently he considered the card to be real. The similar testimonies helped the citizen of Nigeria avoid the criminal proceedings for malpractices with the PC who during the interrogation said that VISA credit card under his name to him had been transmitted by his countryman. He considered the latter had opened the account in his name in the bank from which he drew up cash in Ukraine by the help this countryman.
However, the total of real facts is evidence that in actions of these citizens there are the signs of illegal use of counterfeit PC. In other words, these citizens tried with the help of counterfeit PC to accomplish money order from the corresponding bank account of the payer (it is clear - without his consent) into another account [24].
Classification of malpractices with the remittance documents, payment cards and other providers to the bank accounts committed: à) repeatedly; á) in preliminary agreement of people group
Repetitive action is committing any act, provided by Part 1 or Part 2 Article 200, CC by a person who had committed one or several acts regardless of their succession, availability or absence of a previous conviction for them. Thus, it is necessary that the intention to commit each malpractice would come to the guilty person’s mind independently. When commiting the first act, the further malpractices with the indicated subjects were encompassed by the mentioned intention, everything committed is necessary to consider as a single enduring crime and should be qualified in accordance with Part 1 Article 200 CC. Thus, for example, it was the principle of recurrency (item 2 Article 200 CC) which A.’s actions were qualified with by the bodies of projective investigation; the man during three months used counterfeit PC. It was found out that À. used such forged PC "Master Card» twice for capturing ready money through cash dispenser. À. tried one more time to pay for supper in a restaurant in Yalta, however, he was detained on suspicion of counterfeiting and using a credit card. So, in the latter case À. tried to transfer cashless resources to the account of the restaurant.
From the point of the recurrency principle (part 2 Article 32 CC) the crime involving two or more identical criminal acts committed in different times and combined with one criminal intent is not a enduring crime. For example, for capturing money resources at the large amount (on the sum which is 250-fold more than non-taxable minimum of citizens’ incomes) a person may use two counterfeit payment orders that is „divides» the total into two parts.
Identical acts, an enduring crime consists of, may themselves (each separately) be the acts having all signs of an independent crime, or may be the acts under different circumstances would be esteemed only as other offences. Enduring crime starts with committing the former and ended with committing the latter from identical criminal acts which make up this crime.
Common criminal intent, combining criminal acts when committing an enduring crime, as the special aspect of the intentional shape of guilt, takes place when the guilty person in the presence of general signs of the intent carries out his plan counting to commit more than one criminal act but at different times; these criminal acts are identical on the basis of criminal act signs directed to reaching a general result. Common criminal intent for committing an enduring crime arises in the guilty person’s mind even before committing the first from the crimes which make up an enduring crime.
The availability of the enduring crime signs from the crime classification point of view means that it is considered as one crime, not a recurrency of crimes. Committing two or more independent enduring crimes provided by the article of CC should be regarded as recurrency of crimes.
According to Part Article 28 CC the crime is declared to be committed in a preliminary agreement a group of people involved in if it was committed with joint efforts of two or more persons who beforehand (that is before committing a crime) arranged about their common actions.
The acts committed in a preliminary agreement a group of people provided by Part 1 Article 200 CC are to be classified in case of their joint undertaking by the accessories of two of more persons who beforehand (before committing the acts) agreed upon it. At that one can single out a division of committing acts: one person may commit the act, for example, counterfeit of a bank payment card (by changing the information of his magnetic holder, information extruded on its face side, and also a signature of its owner), another one – use it for illegal capturing of one’s money resource (for example, through the cash dispense) or their sales.
According to this regulation the participation in a preliminary agreement of group of people (two or more) will take place in those cases if among the accessories it will be an agreement about its joint committing a crime as executers. Thus among the accessories of such a crime the division of roles concerning criminal actions of any of them can take place [26]. To agree upon joint committing a crime beforehand means to reach the agreement concerning undertaking of its objective side before the moment of committing (that is counterfeit of the remittance documents, payment cards, other providers to the bank accounts, acquisition, saving, transportation, transfer with the purpose of selling the counterfeit remittance documents, payment cards, their use and sales).
Thus this arrangement possibleat the stage of preparing for the crime and also during the crime. It proceeds from Part 2 Article 28 CC that this agreement is to concern commonness of committing a crime (coordination of a crime object, his nature, place, time, method of committing a crime, matter of executed functions etc.). Such arrangement can be held in any shape - oral, written, with the help of concludent actions etc. So, in one case, the acts of À., Â. and Ð. were qualified on the bases of this qualifying sign on the ground that the arrangement between them concerning commonality of a bank payment card counterfeit and their illegal use through cash dispenser. In particular, À. and Â. with the help technological (thermopress, heaters etc.) and computer facility forged the PC, then transferred them to Ð. for drawing up cash in cash dispenser.
The participants of undertaking malpractices with the remittance documents, payment cards and other providers to the bank accounts in such a group operate as the accessories. At that technical division of functions is possible due to which each accessory executes a definite role. For example, one person cuts off extruded letters, digits with the help of a scalpel and also crosses out with ink such as "Shtrih" a signature of the PC owner . The second warms up this piece of a plastic with the help thermopress then to paste new letters. The third forges a signature of the proprietor. Then such forged PC is transmitted to the last accessory for immediate usage. Therefore such acts are necessary are to qualified according to Part 2 Article 200 CC (on the basis of the signs of committing a crime in preliminary agreement in a group of people provided reement precursor plot by group of faces), and also it presence of definite signs – in accordance with the corresponding article of crime against property.
The held analysis of problems of a classification of malpractices with the remittance documents, payment cards and other providers to the bank accounts, facility for their fabrication resolves allows to make such conclusions.
1. The social danger of such criminal acts as a counterfeit of the remittance documents, payment cards, other providers to the bank accounts, and also acquisition, saving, transportation, transfer with the purpose of sales of the counterfeit remittance documents and payment cards, their usage, sales, is that their negative influence is reflects on the established order for fabrication, usage and circulation of such subjects, which ensures normal functioning of all banking system of the state.
2. The immediate object of a crime provided by item 200 CC is the established order of fabrication, usage and revolution of the remittance documents, payment cards or other providers to the bank accounts, which one are ensured with normal operation of a banking system of Ukraine.
3. From the objective side the crime is expressed in: 1) a counterfeit of any providers to the bank accounts 2) undertaking: à) acquisition, á) saving, â) transportation ã) transfer with the purpose of sales of the false instruments on retelling or payment cards, or 3) usage or sales of the false instruments on retelling or payment cards. From the moment of undertaking any of the enumerated operatings the crime is considered finished.
4. From the subjective point of view the crime is characterized only by premeditated form of a guilt, the kind of guilt is direct. Motives and the aim may exist and they don’t influence the qualification of operation according to Article 200 CC, but they may be evidence in a guilty person’s activity of available signs of preparing for committing other more serious crimes, in particular, preparing for looting someone’s property. As a rule, it is the very aim (misappropriation of someone’s property) guided by while committing crimes provided by Article 200 CC. In case of real misappropriation of someone’s property by means of using counterfeit means of access to the bank accounts the guilty person’s activity must be classified on the total of all crimes –Article 200 and Article 190 CC [28].
5. The subject of a crime is a person attained 16 years.
1.Vertuzaev M. Virtual Piece of Cake. Theft of cash resources in electronic bank system makes up 45% of all crimes // Kievskiy telegraph. – 2002. – September 30 – September 6. – P. 12.
2.Zavidov B. Sphere of High Technology as an Object of Crime //Criminal Law. – 2002. - ¹ 3. – P. 110.
3.Scientific and Practical Commentary of Criminal Code of Ukraine of April 5, 2001/ Edited by M.I. Mel’nik, M. I. Khavronyuk. – K.: Kannon, 2001. – P. 506; Scientific and Practical Commentary of Criminal Code of Ukraine of April 5, 2001/ Edited by M.I. Mel’nik, N. I. Khavronyuk. – Kiev: Kannon; A.C.K., 2002. – p. 545.
4.Scientific and Practical Commentary of Criminal Code of Ukraine / Edited by S.S. Yatsenko – Kyiv: A.C.K., 2002. – p. 401.
5.Scientific and Practical Commentary of Criminal Code of Ukraine / Edited by S.S. Yatsenko – Kyiv: A.C.K., 2002. – p. 401.
6.Defining the notion “document” V. O. Navrotskiy makes out such features a) written and electronic form; b) availability of essential parts ( these essential parts are different for separate documents – paper work on the definite forms, availability of a stamps, seals, signatures of responsible persons or those officials who prepared the documents or those whom the documents were adjusted with); c) the informative aspect that is the document confirms the rights or dispenses from duties, involves the information about the facts having the legal sense; d) originates from a state or other enterprise, establishment or company ( see: Navrotskiy V.O. Criminal Law of Ukraine. Special Part: Series of Lectures. – Kuiv: Znannya, 2000. – P. 515, 610-613).
7.Lisovyi V. “E-Crimes: Professional Aspects // Law of Ukraine. – 2002. - ¹ 2. – P.. 87-88.
8.Bulletin of Supreme Rada of Ukraine/ - 2001 - ¹ 29. – A. 137.
9.Bulletin of Supreme Rada of Ukraine/ - 2001 - ¹ 29. – A. 137.
10.Some authors think that illegal money order - is the order initiated not by an account’s owner or the order which is not provided by money on a bank account (see: Scientific and Practical Commentary of Criminal Code of Ukraine of April 5, 2001/ Edited by M.I. Melnyk, M. I. Khavronyuk. – K.: Kannon, 2001). Firstly, it would be correct to define the last criterion of the notion “illegal money order” (non-supply of bank account with money) as insolvency (in this case the matter deals with insolvency). In item 1.20 Article 1 Law of April 5, 2001, ¹ 2346-III insolvency is defined as the inability of a member of a payment system in time stipulated by the treaty or defined by legislation of Ukraine, to discharge his duties as for money order in the whole extent. Secondly, some more illegal criteria of money order are missed, in particular, variance of the information defined by a payer in a remittance document, the essence of a transaction concerning which this order fulfilled (item 33.2 Law A. 33, of April 5. 2001, ¹ 2346-III): resaving resources by improper recipient ((item 35 Law of April 5. 2001, ¹ 2346-III). In the first case the payer is responsible for correspondence of the information defined by him in the remittance document, the essence of a transaction concerning which this order fulfilled. The payer must indemnify the bank or any other establishment for damage caused by such discrepancy of the information (item 33.2 A. 33,Law of April 5. 2001, ¹ 2346-III)/ in the second case – improper recipient is obliged during 3 working days starting from the date the information received by a bank-trespasser about erroneous money order initiate the order of the equal sum of bank-trespasser money, under the condition of receiving the message of this bank about making a erroneous money order (item 35.1.2 A. 35, Law of April 5. 2001, ¹ 2346-III).
11. Official Bulletin of Ukraine. – 2001. -¹.5–6. –A.30.
12. Official Bulletin of Ukraine. – 1997. -¹.13 – P.88 –89; ¹30. – P.76;1998. - ¹11. – A. 419; ¹ 48. – A.1768; 1999. - ¹7. – A. 261; ¹14. – A. 584; ¹25. – A. 1198; ¹40. – A. 2007; 2000. - ¹7. – A.286; 2001. - ¹ 1-2, Part 1. – A. 37.
13. See: Scientific and Practical Commentary of Criminal Code of Ukraine / Edited by S.S. Yatsenko – Kyiv: A.C.K., 2002. – P. 399-400, 402
14. The same. – P.402
15. Chernyavskyi S.S. Methods of investigating crimes in the sphere of bank credit. – Abstract….and. of Law. – Kyiv, 2002. – P.9.
16. Smaglyuk O. Swindle committed by illegal transactions using computers// Enterprise, Management and Law). – 2002. - ¹. 6. – P. 84-85.
17. Berzin P.S. Peculiarities of Investigating Misappropriations with the Use of Counterfeit Bank Payment Cards // Actual Problems of Modern Criminal Law: Materials of international scientific and practical conference (Simferopol – Alushta, September 19-22): In 2 parts. - Simferopol : “DOLYA”, 2002 – P. 113- 118; Berzin P. The Investigation Peculiarities of the Plunders Made with Counterfeit Bank Payment Cards Use // Computer Crime Problems Research Center / http: // www. crime-research.org/eng/library/Berzin17_eng.htm
18. Kotlyarevskyi O.I. Swindle with Plastic Payment Cards // Collection of Scientific Works. – Zaporizhzhia: Zaporizhzhia Law Institute, 1998. - ¹ 1. –P49.
19. Collection of Methods references about the problems of crimes disclosing and investigating by investigators, operative officials of internal affair bodies / Edited by P.V.Kolyada. – Kyiv: The Chief investigation Department of MIA, 2001. – P.36.
20. Kobylyanskyi O.L. Problems of Plastic Cards Investigation // Theory and Practice of Judge Examination and criminal Law. Issue 2: Collection of Materials of international scientific and practical conference. - Kharkiv: Pravo, 2002. – P. 235-239.
21. Official Bulletin of Ukraine. – 2001. -¹6 – Cò.2105.
22. Smaglyuk O. Swindle committed by illegal transactions using computers// Enterprise, Management and Law). – 2002. - ¹. 6. – P. 86.
23. Vertuzaev M.S., Kotlyarevckyi A. I., Yurchenko A.M. Means of Trespass on Banks’ Property and Their Clients by Means of Using Credit Cards // Information Security. – 1997. - ¹1. – P.28-41; Vertuzaev M.S., Chunis I.F., Tarasov A.V.,Yurchenko A.I Control of Authenticity of Plastic Payment Means of International Pattern// Physical Methods and Controlling Means of Environment, Materials and Goods: Collection of Scientific Works. – Kyiv-Lviv: National Science Academy of Ukraine, 1999. – P. 195-197; Vertuzaev M.S., Khripko S.L. Encoding as a Means of Information Protection // Informational Technologies and Information Protection: Collection of Scientific Works. – Zaporizhzhia, 1998 – Issue 2. – P. 24-3
24. Such point of view was expressed by the author at the international scientific and practical Conference “Priority-driven tends of the activity of internal affairs bodies in fighting against criminality at present” (Dnipropetrovs’k, October 25-26, 2002) in the report about criminal proceedings problems for illegal convertation of money resources that is committed by means of bank payment cards.
25. Scientific and Practical Commentary of Criminal Code of Ukraine of April 5, 2001/ Edited by M.I. Mel’nyk, M. I. Khavronyuk. – K.: Kannon, 2001. – P. 110; Scientific and Practical Commentary of Criminal Code of Ukraine of April 5, 2001/ Edited by M.I. Mel’nik, N. I. Khavronyuk. – Kiev: Kannon; A.C.K., 2002. – P. 121.
26. See: Scientific and Practical Commentary of Criminal Code of Ukraine / Edited by S.S. Yatsenko – Kyiv: A.C.K., 2002. – P. 53.
27. Collection of methodical references to the problems of crimes disclosing and investigating by investigators, operative officials of internal affair bodies / Edited by P.V.Kolyada. – Kyiv: The Chief investigation Department of MIA, 2001. – P.38.
28. Scientific and Practical Commentary of Criminal Code of Ukraine / Edited by S.S. Yatsenko – Kyiv: A.C.K., 2002. – p. 402.