The check as an instrument of fraud: a critical look at the Ecuadorian reality

Abstract

This work focuses on the impact of the constitution of the check, as a fraudulent instrument, for the classification of fraud and its impact on public faith and personal assets. Conditioning that leads to establishing the necessary conditions for the fact, as well as the differences in when its execution must be carried out through civil means and when through criminal means. Determining, where appropriate, that the lack of funds does not imply, per se, the commission of the unjust act, but rather derives from how it was issued; If the check was drawn when the checking account was open, it does not constitute fraud, even if it happens when the beneficiary goes to cash it and there are no funds. Nor is it when the financial institution has not notified the owner of its closure. In this type of case, collection is through civil means in executive or summary proceedings. The existence of complaints of apparent fraud is common, and in the initial libel of this the alleged victim states that she has been “swindled” because the check has been protested for insufficient funds. Consequently, it can be concluded that this is not a criminal action, but rather a civil action, given that there has been no fraud or intention, only an opportunity for collection. For the classification of fraud, a preceding or concurrent deceptive action is required, which is the ratio essendi of the crime, in order to enrich the assets of the perpetrator.