This crime is regulated in articles 248 and following of our penal code.
The crime is composed by the existence of a previous lie, which has to be sufficient and proportional to induce the person to deliver a thing of his property, that is to say, to generate in the passive subject an essential error. Likewise, there must be an act of property disposition, the delivery of an asset by the passive subject to the perpetrator of the crime must be carried out. The latter acts motivated by a profit motive consisting of obtaining something for himself or for a third party, to the detriment of his victim.
The following actions will also constitute the crime of fraud:
Finally, according to most of the doctrine and case law, there is the crime of fraud by omission. It consists in the fact that the subject obliged, as guarantor, to avoid the victim’s error does not do so, taking a passive attitude.
The penalty for the basic modality is from six months to three years of imprisonment, according to the amount defrauded. If such amount does not exceed 400 euros, then the penalty will be a fine of one to three months.
Article 250 includes situations in which the penalty is aggravated, being from one to six years imprisonment. For example, when the fraud involves essential goods, when the good is part of an artistic or cultural heritage, when the victim is left in a very delicate economic situation, when the value of the fraud exceeds 50 thousand euros, among others.
The penalty will be imprisonment from four to eight years when the value of the fraud exceeds 250,000 euros.
Legal entities can be perpetrators of the crime of fraud. The penalties that will be imposed on them will be a fine, the amount of which will be in accordance with the prison sentence that would be imposed if the crime were committed by a natural person.
In addition, depending on the circumstances and at the discretion of the judge, certain measures may also be imposed, such as the dissolution of the legal entity, for example.
Our firm has extensive experience in fraud proceedings.