Some Thoughts About the Crime of Abuse Bypass. When You write a check without provision of funds

Prima facie, it is clear that the crime of bypass Abuse, is provided for and punishable under Article 215 of the Criminal Code, the same notes, shall be punished with deprivation of liberty for not less than one nor more than five years, which turn, transfers or cash a check in the following cases: 1) When you turn without sufficient funding or authorization to overdraw the current account of the factual scenario rules, then you have the legally protected criminally consists of " Commercial traffic safety "[1]. For the notorious Argentine professor Carlos Creus, illustrates that the legally protected interest is referred to the trust deserves the check as a tool for immediate implementation as a payment order as a procedure to facilitate commercial transactions to avoid currency movement. Violate that trust checks for any reason, in lack of money to be paid or can not be converted into cash upon presentation [2]. As Otea, what the standard is intended to protect the security of the trade and also the confidence that society places on these means of payment, to be disrupted by unlawful behavior, thus generated, insecurity in commercial traffic and loss of confidence of the community towards the use of such commercial paper.

In that vein, and penetrating study of the structure of the crime of deliverance abuse, it must be borne in mind that in this case, the conduct in question is regulated in subsection 01 of section 215 of the Code of Punishment, in which is sanctioned by writing a check knowing that at the time of presentation may not be legally paid, being that this type of unfair Clearances undue demands to be concrete, the fraudulent nature of the type that the agent knows that the check is rotated without support or not enough equity with the permission of the bank overdraft [3]. Strengthening the line of analysis, the Argentine Creus, continues to bring to our study, and notes that have to be a check that, at the time of presentation, not paid for lack of funds and for which the drawer is not authorized to rotate in-overdraft-discovered by the authority of the bank on which it rotates. Although the letter of the article would seem to say the least, lack of funds should be given at the time of presentation of the check to the bank for conversion, irrelevant of the fact that had been treated at the time of the book [4 ].

In a similar contribution to our compatriot Alonso Peña Cabrera-Freyre, we stated that the author of this criminal offense, you must first having a current account, which for various reasons, when you turn the check payable to the beneficiary, must be devoid of funds that is, not when seeking to recover the taxpayer, because if they do not charge the beneficiary in a timely manner and, in recognition of other amounts charged by third parties, having the same current account holder and the debit-generating , does not imply endorsement of the issuer, but the person who did not cash according to the date entered in the title for their collection value [5].

On the other hand, regarding the subjective criminality, the crime of abuse warrant, requires the presence of fraud, that is, that the perpetrator must act with conscience and will that is made criminally reprehensible behavior, and also that the illicit drink at the time you turn the title value without funding, the inability to pay is the verification of dangerous behavior.

Already seen some elementary notions of the offense of improperly bypass by writing checks without provision of funds, should think about a situation that is raising the legal reality is that related to allegations that are made for cases where the check is submitted after the deadline that has the check, and where also the account on which the check is drawn is devoid of funds, ie, it writes a check and being put to cash the check that is not pay for lack of funding, but it is also submitted after the due date of the check (according to the Securities Act), in that case, the behavior is typical or atypical for the crime of abuse warrant?.

Let's see, what other edge we have, for it lay hold of the Law No. 27 287-Securities Act "which in Article 207 º, says the deadline for the check for payment, whether it was issued within or outside the country, is 30 (thirty) days, and that this period shall start from the date of issuance, including (...), on the other hand the standard of matter, in its article 72, states that the term to protest non-payment check, is limited to within the presentation, which we have, that the deadline for protesting a check, it is also THIRTY D? AS.

Elaborating about our national jurisprudence has pointed perspicuous view that the crime of abuse warrant requires that the agent is informed of the protest non-payment by attorney or other requirements document, which must be made within the term of the check, otherwise it becomes a debt collection process. In that event it follows that if a check is protested (or is stamped on the back of it unpaid registration for lack of funds by the bank), this protest to be valid and therefore enforceable imperative must be performed by the standard, within the deadline for submission of such securities, that is, within thirty days of the issuance of the same, ergo, if the check is protested outside the period of thirty days granted by the standard and in response to the discretion of our jurisprudence, the action would become a collection of debt or obligation to give money [6].

It should also be bounded, which in view as advocated by Article 178 of Law before glossed, the check as a payment instrument, can not be issued, endorsed or transferred as collateral, to prove that the holder received the check, knowing that violates any of the foregoing prohibitions, the title shall not affect exchange, in this line of argument, Dr. Richard Beaumont Callirgos and Another, has argued that the money and transfer the check should be made only for payment purposes and , issue, endorsement or transfer of a security check, removes validity as such, and that failure to observe the contents of the article, so drastic sanction, offsetting currency effects of the title, about the person who receives it, so the payee or endorsee or holder of a check drawn or transferred as security, has no right to exchange any shares resulting from the check, which in such cases no longer check, given that the document does not currency effects [7]. Thus, it follows then, that any check that has been turned under warranty, no exchange value and effectiveness and punished with the cancellation of the effects occurred.

For its part, the legal preceptor, Dr. Ulysses Montoya Manfredi, who in his great work of Commercial Law, tells us that the protest is of a commercial coating quality of public documents when extended by a public official in the manner determined by law , being that there are also securities which payment must be verified by direct debit to stay in a company of National Financial System and the check (section 213 paragraph 01) the evidence pointing to the lack of payment, all having an effect of the protest, with As an exception to the principle of giving authenticity to an act that a notary public is not involved [8]. In addition, the Securities Act gives the protest an evidentiary function (since it allows to prove that the defendant fails to comply with their respective obligations, enabling the holder to exercise the corresponding actions), and a conservative function (as without that act lost shares of securities) [9].

As we see the protest has an evidentiary function that allows the holder to prove conclusively that the obligor failed to pay the debt, being for the case of the check, put the seal on the underside of the security with the inclusion of non-payment . In this regard and considering that both the deadline and protest of the check is thirty days, our national jurisprudence has sanctioned these protests made outside the legal time limit (protest extempore? NEO OF T? TITLE), so is that in case No. 97-65682 - Second Civil Chamber of the Superior Court of Lima, dated 30/06/1998, states: "appears in the cambial (...) that the protest was made after the deadline set in the second paragraph of Section forty-nine of the aforementioned body of law (Law No. 16 587, before the current Securities Act), so that this situation leads to the loss of the right of execution of the cambial "[10] the extract of the statement referred to, but is focused on a bill of exchange, may well be applied and inferred for the title value of the check, considering that both are also securities and are regulated by the same Act within which provides general precepts (the protest).

Added to this, and in a more specific statement, the same Second Civil Chamber of Lima, has spoken about the lack of executive merit record check for unpaid extempore? NEA, stating: "(...) it is clear that this check has no right of execution on the grounds that the evidence of refusal has been outside the time limit specified in section one hundred seventy (Act No. 16 587-anterior Securities Act-) not fulfilling the requirements of paragraph two of Article 793 of Civil Procedure Code (...) [11]

In the logical order of reasoning, it is then that when a securities-in our case the Voucher is protesting outside the statutory period of thirty days (under Article 72, paragraph "d" of the Securities Act), lacks exchange effects and does not have the quality of enforcement, as we have consistently held the national issued for this purpose. See the following diagram:

T? TITLE VALUE "check"> PROTEST MADE WITHIN 30 D? AS OF DELIVERED T? TITLE VALUE (ART.72 INC. "D" LTV)> RESULT> PROTEST V? LIDO, EXCHANGE EFFECTS GENERATOR AND EXECUTIVE MERIT.

T? TITLE VALUE "check"> PROTEST MADE OUT OF 30 D? AS OF DELIVERED T? TITLE VALUE> RESULT> INV PROTEST? LIDO, lacking cash generation EXECUTIVE EXCHANGE AND MERIT.

In this sense, lacking merit currency effects and a security executive, the analysis of the crime of abuse warrant iter should use the following:

INV PROTEST? LIDO, lacking GENERATION OF MERIT Fx & Run> In the absence of Protest currency effects, there would be V? LIDAMENTE A PROOF OF PAYMENT NOT DUE TO LACK OF FUNDS, AND THEREFORE DOES NOT HAVE THE REQUIRED procedurability TYPE REQUIRED FOR THE CRIME OF IMPROPER BYPASS> RESULT> ATYPICAL BEHAVIOR.



Supra scheme factions, and the lead times stated vein, which could not be imputed the crime of abuse warrant in the case presented, the reason that such securities were protesting outside the statutory period of thirty days required the standard, which would generate that such protest is without currency effects, ergo, the absence of a valid protest, neither would have the procedural requirement for the configuration of the crime of abuse warrant, namely, the protest (shown on the label placed on the back of the check, with the inscription of unpaid due to lack of funds). It should be noted further that the rule to punish a period of thirty days for the submission and collection of a check, and also to the protest, but out on the understanding that people turn holds accounts and checks, are not subject at the mercy of its creditors, who with a misuse of the instrument of change, could expect to make a security payment at any time, thereby generating insecurity on the part of the drawer you always have funding, and be in a state of anxiety, as they can be denounced for the crime of abuse warrant, that is why the legislature has wisely established as the filing date of the check and protest the 30 days, putting in time to stop such actions, and not left to discretion of the payee of the check.

Author: José Antonio Díaz

Comments, questions and suggestions: jdiazmuro@hotmail.com



[1] REYNA ALFARO, Luis Miguel. ECONOMIC CRIMINAL LAW - PART and special items. Law Gazette editions. First Edition April 2002. Page 387.

[2] CREUS, Carlos. Op Cit. Page 491.

[3] REYNA ALFARO, Luis Miguel op. Page 389.

[4] CREUS, Carlos. Op Cit. Page 494.

[5] FREYRE Peña Cabrera, Raul Alonso. CRIMINAL LAW SPECIAL PART. Volume II. Idemsa Editions. In November 2008. Page 574.

[6] 11/10/1996 Supreme ENFORCEABLE. Docket No. 3665-96, LSMBAYEQUE. In ROJJASI PELLA, Carmen. Supreme Criminal IMPLEMENTING 1993-1996, Lima, Legrima. Page 191.

[7] BEAUMONT Callirgos, Ricardo & CASTELLARE AGUILAR, Rolando. COMMENTS ON THE NEW SECURITIES LAW. Law Gazette. First Edition in October of 200. Page 543.

[8] MONTOYA MANFREDI, Ulysses and Other. COMMERCIAL. VOLUME II (T? Titles VALUES AND THE STOCK MARKET). Grijley Legal Editor. Eleventh Edition 2004. Page 104.

[9] Ibid.

[10] OSORIO RUIZ, Zaida. BUSINESS CASE LAW. Editorial Law Gazette. First Edition April 2000. Page 153-154.

[11] Ibid. Page 244-245.