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The "Estafa" (this legal concept could be translated as Fraud) as a Crime in Spain


In Spanish Criminal Law the crime of fraud is a patrimonial crime committed by the person who uses deception for profit to cause an error in the victim, inducing him to carry out an act of disposition to the detriment of himself or of a third party.


In essence, fraud is a crime that consists of provoking deception to another person, to whom is caused, for profit, a patrimonial damage.


The crime of fraud is regulated in Title XIII (crimes against property and against the socioeconomic order), Chapter VI, Section One (of the frauds) of the Penal Code, in article 248 et seq.


The basic type of this crime is included in article 248.1:


Fraud is committed by those who, for profit, use enough deception to produce an error in another, inducing him to carry out an act of disposition to his own or another's detriment.


The legal asset protected from the crime of fraud is property and can be committed on movable property, real estate, rights and services.


In addition to the basic type included in article 248.1, there are also other specific cases of the crime of fraud:


The use of computer manipulation with the aim of achieving a non-consensual transfer of any patrimonial asset to the detriment of a third party.


The manufacture, introduction, possession or facilitation of computer programs intended for the commission of fraud.


The use of credit or debit cards, traveler's checks or the like to carry out operations to the detriment of their owner or a third party.


Let's see what are the elements of the crime of fraud, specifically those objective elements, such as deceptive behaviour, which constitutes the devaluation of the crime and can be carried out in countless ways.


Deception is the simulation that allows the patrimonial damage to be attributed to another person. The error produced because of the damage which is to lead another person to an intellectual situation of error. That is to say, that the author produces a vice in the mind of the victim, thus resulting in the victim being deceived.


The act of disposition undertaken by the deceived person that can be carried out on any patrimonial element in any way, as long as it has economic significance.


It is necessary that both the deceived and the one who carries out the act of disposition are the same person. However, it is not essential that the person who receives the damage and who undertakes the act of disposition are the same person. The normal thing is that the one who suffered the damage was the same as the deceived one, but it does not have to be so.


On the other hand, the patrimonial damage that has a double face because what is detrimental to the victim becomes a benefit to the perpetrator. It is necessary to value the patrimony of the affected person globally, comparing what he had before and what he had after the crime occurred.


Finally, with regard to the subjective element, see the profit motive with which the perpetrator of the crime works, it being necessary to obtain the benefit sought in order to understand that a fraud has been carried out.



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