FAIL
In the sense of criminal law, the person who commits the unlawful act is the perpetrator of the offence. No specificity is required to be the perpetrator of the offence of fraud. Since this offence is not one of the specific offences in terms of the perpetrator, anyone can be the perpetrator. Legal entities cannot be the perpetrator of this offence. However, pursuant to Article 169 of the TPC, if an unfair benefit is provided for the benefit of a legal person, a security measure specific to them is provided.
In the event that a public official abuses the influence provided by his/her position and provides benefit through fraudulent behaviour, the crime of extortion will occur, not the crime of fraud. However, if the public official benefits without abusing the influence provided by his/her position, the offence of fraud will be in question.
VICTIM
The victim is the person or persons directly affected by the act constituting the offence. In other words, the victim is the owner of the legal interests protected by the criminal norm and violated by the offence, that is, the legal subject of the offence. The victim of the offence of fraud can be anyone. However, the person who is deceived and the person whose assets are damaged may be different. While the victim of the crime of fraud must be a real person, the victim may also be a legal entity. In the offence of fraud, the victim must be specific or identifiable.
LEGAL SUBJECT OF THE OFFENCE
The legal subject of the offence is the protection of the property right of the person and the interests related to his/her assets. The crime of fraud also protects the freedom of will, since the person’s ability to decide freely is taken away. Goodwill and trust are also the legal subject of the offence, since human relations are based on goodwill and trust.
According to the Court of Cassation, “two legal issues are protected by the offence of fraud. One is the freedom of human will and the second is the assets and interests related to the assets.” (Criminal General Assembly of the Court of Cassation 07.02.2006 129/13)
ACTIVE
In order for the crime of fraud to occur, a real person must be deceived by fraudulent behaviour. In order for an act to be considered as a fraud, the will of the person must be crippled and the truth must be concealed or shown differently in some way. In this respect, any act that cripples the will of the victim is considered as cheating; therefore, it does not matter with which act the act is performed.
Fraud may be committed by an executive act or by a negligent act. However, in this case, in order for the offence of fraud to occur, the person must have an obligation to inform the party in error.
In order to be able to talk about the offence of fraud, the victim must be deceived apart from the fraudulent act. In order for the victim to be deceived, he/she must have done something that he/she would not normally do if he/she had not been deceived due to being deceived. In short, whether the victim is deceived or not will be determined according to the personal characteristics of the victim. In the offence of fraud, by deceiving the victim as a result of the fraudulent act of the perpetrator; the perpetrator must benefit himself or someone else to the detriment of the victim or someone else.
SPIRITUAL ELEMENT
When the moral element is mentioned, it is mentioned whether the offence is committed intentionally or negligently. The offence of fraud is one of the offences that can only be committed intentionally, it is not possible to commit it by negligence. In this case, the perpetrator acts knowingly and willingly. It is also possible to commit the offence of fraud with probable intent.
QUALITATIVE ELEMENTS
Article 158 of the TPC defines qualified fraud as “The offence of fraud;
By exploiting religious beliefs and feelings,
By taking advantage of a person’s dangerous situation or difficult circumstances,
By taking advantage of the weakness of the person’s ability to perceive,
By using public institutions and organisations, public professional organisations, political parties, foundations or associations as instruments,
At the expense of public institutions and organisations,
By using information systems, banking or credit institutions as a tool,
By utilising the facilities provided by the press and broadcasting media,
During the commercial activities of persons who are merchants or company managers or acting on behalf of the company; cooperative managers within the scope of the activity of the cooperative,
By self-employed persons, by abusing the trust placed in them due to their profession,
In order to ensure the opening of a loan that should not be allocated by the bank or other credit institutions,
In order to collect the cost of the insurance,
The person identifies himself/herself as a public official or as an employee of a bank, insurance or credit institution or states that he/she is associated with such institutions or organisations,
By deceiving them with the promise that they have a relationship with public officials, that they are respected by them and that a certain job will be carried out,
If the offence is committed, imprisonment from three years to ten years and a judicial fine up to five thousand days shall be imposed. However, in the cases listed in subparagraphs (e), (f), (j), (k) and (l), the lower limit of imprisonment shall not be less than four years and the amount of judicial fine shall not be less than twice the amount of the benefit obtained from the offence.
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The penalty to be imposed in the event that the crimes listed in this Article and Article 157 are committed by three or more persons together shall be increased by half, and the penalty to be imposed in the event that they are committed within the framework of the activities of an organisation formed to commit a crime shall be increased by one times.”
In order to be able to talk about the qualified form of the offence of fraud, first of all, it must meet the conditions sought in the simple form of the offence. Accordingly, committing the crime of fraud by using credit institutions as an intermediary is counted among the qualified forms of the crime. What is important here is not the acquisition of the victim’s deposits in credit institutions, but the fact that the perpetrator includes credit institutions in the fraudulent behaviours used by the perpetrator to deceive the victim and uses these institutions to deceive the victim.
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