The intent of the article is to show modern condemnable jurisprudence attack to computer-related fraud. Modern construct of fraud in condemnable jurisprudence includes lead oning a computing machine system and is going an established construct in the developed states. However, the Slovenian Criminal Code has non yet adapted to the alterations the new engineering has brought. We still cleaving to the traditional construct by which merely a physical individual can be deceived ( and non a computing machine system ) .The Slovenian Criminal Code has non implemented the demands of the Convention on Cybercrime and should, therefore, be amended. My decisions sing computing machine fraud could besides turn out utile to some other states get bying with the same condemnable statute law as Slovenia. After a careful scrutiny of the term computing machine fraud and its signifiers, I will utilize a comparative method that includes scrutiny of international paperss, studies and Criminal Codes. Comparative research is one of the indispensable methods of condemnable jurisprudence methodological analysis, since it allows comparing with the accomplishments and attacks favored by other Legislatures and condemnable jurisprudence theoreticians. Compared to legion other states holding already get the better of the traditional construct of fraud, Slovenia and its jurisprudence experts have, so far, neither faced the job of computer-related fraud nor the demand to get the better of its traditional construct. In this respect, the article can lend to domestic every bit good as comparative condemnable jurisprudence theory.
Keywords: Fraud, Deceit, False representation, Modern construct of fraud, Traditional construct of fraud, Computer system, Information system, Cybercrime, Criminal Law.
The construct of “ fraud ” is one of the oldest condemnable offenses and has been around in the human society since the beginning of trade and commercialism. In today ‘s information age, where huge sum of trades, commercial services, and payments are made by agencies of the Internet and computing machine systems, the traditional offense of fraud has gained newdimensions. Therefore, jurisprudence theory shortly realized that the traditional construct of fraud could non cover the new signifiers of computing machine related frauds. Due to the development of information engineering, a modern construct of computing machine fraud was formulated – a construct
that we will seek to show in this paper. Fraud in its kernel fundamentally means a wilful deceit of truth or privacy
of material fact in order to bring on another individual to move to his or her hurt ( Black ‘s Law Dictionary, 2004 ) . Albrecth et. al. , ( 2011 ) argues that fraud is a misrepresentation that includes a representation about a stuff point, which is deliberately or recklessly false, and which is believed by the victim. Fraud, hence, consists in taking advantage of a individual or in misdirecting that individual, sing specific facts with the intent of belongings or pecuniary addition. Deisinger explains ( 2002 ) that basic component of deceitful condemnable act is to make false representation in the victim ‘s province of head or to allow the victim in this province.
False representation of facts agencies, that the culprit creates a incorrect thought of the fortunes and facts. Mistake in the victim ‘s thought procedure is created due to the wrongdoer ‘s false claims about the existent fortunes.
The Slovenian Criminal Code ( KZ-1, 2008 ) defines fraud in Article 211 as: “ Whoever with the purpose of obtaining for himself or a 3rd individual an improper stuff benefit, amendss the belongings of another by doing or keeping an mistake by feigning false facts or by falsifying or stamp downing true facts. ” It is clear that fraud can be executed by a committee ( “ causation or keeping an mistake by feigning false facts ” ) or by an skip ( “ stamp downing true facts ” ) . An indispensable component of fraud is the fiscal intent of the wrongdoer. His end is to derive material benefit or originate belongings loss. With no fiscal intent involved, the wrongdoer ‘s act can non be termed as fraud but as fraudulence, which is frequently a statutory component of other offenses. As Deisinger ( 2002 ) explains, deceit conceptually means cheating, but from the condemnable jurisprudence position this is non tantamount to the condemnable offense of fraud. In instance of fraud the deceitful purpose has to be present before the decision of a contract ; in
instance of fraudulence, on the other manus, this purpose can besides happen subsequently. Furthermore, fraudulence is non needfully connected with a direct fiscal addition of the wrongdoer ; it can be a prima motivation, though. The Anglo-American condemnable jurisprudence system makes a clear differentiation between fraud and deceit.2 Unlike false representation ( which is nonreversible ) , deceit is a reversible construct.
The first demand is a false representation by the wrongdoer. The 2nd is that person was deceived by this untrue representation. “ The victim must hold been taken in or “ conned ” by this false representation, so that the victim believed it to be true. False statement must hold operated on the victim ‘s head ” ( Heathon, 2006, p. 327 ) . On the other manus, fraud is a general term for a condemnable offense that ever includes a fiscal motivation of the wrongdoer. Theorists besides refer us to the debatable definition of fraud and misrepresentation in the economic system and concern universe. In 1919, Page wrote that failure of one party to advise the other of the known facts, does non ever represent a fraud or affects the cogency of an understanding. It is considered that there is an exclusion to the responsibility to unwrap information, when that information was obtained intentionally. Harmonizing to KovaA? ( 2010 ) this is clearly seen in Neil v. Shamburg ( 1983 ) , where the purchasers of a existent estate ordered an expensive probe of the estate, which showed that there was oil under the estate. They did non advise the marketer about their findings. The tribunal ruled that there was no fraud by skip committed by the purchasers – they had no responsibility to inform the marketer about the belongingss of his estate.
II. LITERATURE REVIEW
The 1983 movie War Games starred Matthew Broderick as a computing machine ace child who inadvertently uses his place computing machine to chop into NORAD ‘s computing machine system. Broderick ‘s trickery brought the United States to the threshold of atomic war with the Soviet Union. 5War Games introduced much of the state to the “ hacker, ” and its influence was non lost on members of Congress, who already were seeking to make up one’s mind what to make about traditional belongings Torahs that were ill-equipped to cover with web intruders and intangible belongings that “ may be merely in the signifier of magnetic urges. “ 6 Acknowledging that many provinces already had their ain computing machine offense Torahs, Congress stepped in gingerly with the Counterfeit Access Device and Computer Fraud and Abuse Act of 1984 ( 1984 Act ) .7 The constabulary offense statistics have many spreads in contents and methodological analysis. In malice of that it is about the lone beginning of information, which informs public and political sentiment about offense activity in the state. The constabulary have a strong administrative and proficient mechanism for act uponing the size of offense records. In last 20 old ages at that place was a great fluctuation of offense statistics. In the old ages 1981-1982 ( 1 ) , 1991-1992 ( 2 ) and 1998-2000 ( 3 ) the offense statistics greatly increased, but in the old ages between it decreased. This entire fluctuation of offense was chiefly the consequence of the fluctuation of larcenies and burglaries and partially of the offenses of harm to belongings, larcenies of autos and frauds. The figure of other offenses, which are frequently used in the offense index, such as slayings, robberies and assaults, did n’t increase in the old ages 1991-2000 with the exclusion of drug offenses, which increased in these last old ages. Clearly, on-line auction fraud is a serious job with far-reaching branchings. If prevalence is any indicant, current methods of forestalling and judging this type of offense appear to be uneffective. Prevention schemes must be based in sound theories supported by empirical grounds. From a theoretical position, we can analyze causing and motives of wrongdoers like Ghighina to make comprehensive bar schemes that include micro- and macro-level hindrances, enforcement guidelines, and countenances. Protecting consumers from on-line auction fraud is no simple undertaking, but harmonizing to Kyung-shick Choi ( 2010 ) , we can turn to bar by analyzing the everyday activities theory and its three constituents: the presence of motivated wrongdoers, the presence of suited marks, and the deficiency of capable care. To cut down the figure of motivated wrongdoers, the offense of on-line auction fraud must be made to look less attractive by either increasing the hazard associated with the offense or cut downing the wages. Because of the popularity of e-commerce and on-line auctions, it is safe to presume that the handiness of wagess will remain changeless. Therefore, we should concentrate on diminishing the figure of motivated wrongdoers by efficaciously increasing their perceptual experience of risk.Beyond mathematical and computational methods, thedevelopment of cyber and computing machine offense has besides transformed the manner criminologists study offense and delinquency. Historically, criminologists have focused on traditional signifiers of offense ( e.g. , slaying, assaults, snatch, etc. ) ; nevertheless, during the past few decennaries, offense has moved to the Internet, opening the door to new types of offense and delinquency, every bit good as, new methods of prosecuting in offense. This subdivision briefly describes how the survey of criminology has shifted to include the Internet through promotions in engineering and the usage of computing machines. Although cyber offense research is comparatively new to criminology, this country of research is deriving impulse [ 15 ] . As a consequence, the literature on this subject is extended and sum uping it is beyond the range of this article. As a consequence, we provide merely a snapshot of the research, taken from the diary that pioneered the field, to show this new avenue of research emerging from the development and growing of computing machine and cyber offense. Therefore, the intent of this subdivision is to clear up the manner in which computing machines have become cardinal to the committee of many classs of offense. Specifically we review and discuss three classs of computing machine offenses that illustrate this emerging form and point to the demand to prioritise the intersection of computing machine scientific discipline and the traditional survey of criminology and condemnable justness. Cyber and computing machine offense have emerged as new countries
of research for criminologists and in making so hold provided new chances to use theory to assist explicate such offense. Crimes that are associated with the prevalence of computing machines target the technological industry, its clients, and others [ 16 ] . Some of the offenses that are incorporated into this class include counterfeiting, individuality larceny, corporate larceny, constituent larceny, and buccaneering. Digital buccaneering is the act of copying digital goods ( i.e. , package, paperss, sound, and picture ) without permission from and compensation to the right of first publication holder utilizing computing machine engineering [ 17-19 ] . Digital buccaneering is one country of research that has emerged within cyber criminology and screens subjects such as music, gambling, and other computing machine plans.
Types of computer-related frauds
Clough ( 2010 ) divides types of computer-related fraud into the undermentioned categories:3
a ) Deceitful gross revenues online
B ) Advance-fee strategies ( Nigerian fraud )
degree Celsius ) Electronic financess transfer offense
vitamin D ) Fraudulent investings
vitamin E ) Identity offense
a ) Deceitful gross revenues online
Despite its simpleness, deceitful gross revenues online are still the most common type of fraud in the Internet infinite. Crime Complaint Center, working with the FBI, reports that in the twelvemonth 2010, the figure of frauds, where goods where non delivered or paid, are still at the top with 14.4 per centum ( Crime Complaint Report, 2010 ) . The purchaser commits a fraud by non reassigning money for the goods, by directing counterfeited money or check without coverage. On the other manus, the marketer commits a fraud when he undertakes to direct the goods after the payment, but they are ne’er sent or are of well lower quality than agreed.4
This is the most basic signifier of fraud where we must turn out that the culprit intended to victimize the opposite side, that he deliberately misled the other party ( that the goods will be sent, even though he ne’er had any purpose to make so, or that such goods do non even exist, or are non come-at-able ) and that the inability to pay or despatch the goods is non due to market or any other economic status the A»guiltyA« party had no control over ( e.g. goods were destroyed in conveyance or lost in mail ) . These signifiers of fraud have been around since the beginning of trade and commercialism. Information and computing machine 3 There are of class legion condemnable categorizations of computer-related frauds. Vriesde ( 2001 ) , for illustration, classifies fraud in internet into the undermentioned classs: In-company fraud, Virtual shade store, Telephone card fraud, Trade in hot air, Credit card fraud, Internet auctions, Stock exchange fraud and Diskette fraud
B ) Advance-fee strategies ( Nigerian fraud )
Electronic mail users treat the Nigerian fraud or Scam 4196 as synonymous with the Internet fraud. The Nigerian fraud consists of electronic mails in which the wrongdoer venally makes a false representation and with it deceives the victim by assuring immense benefits, but merely after the victim has sent a certain sum of money to the culprit ( for the intents of graft of functionaries, get the better ofing official barriers, air hose tickets, payment of revenue enhancements, etc. ) . When the culprit receives the money, he cuts all connexions with the victim or attempts to victimize even more money out of the naA?ve victim with new alibis and prevarications. Harmonizing to PerA?ak ( 2002 ) cozenage 419 is a comparatively simple version of the traditional advance-fee fraud in a extremely complex organized condemnable activity. The culprits rely on greed and naA?vete of the people and sometimes on the clemency and willingness to assist ( the wrongdoer presents himself as a hapless adult male holding suffered a terrible accident and is now roll uping money for bosom surgery, tumour, or as a suffering adult male taking attention of his ill kid ) . This is surely the most normally practiced type of fraud today. There is fundamentally no single user of electronic mail who has non received legion Nigerian fraud efforts. Despite the simpleness and sometimes the stupidity of such electronic mails, the probes conducted in this sphere unwrap ( Ultrascan Advanced Global Investigations, 2009 ) that fraudsters are successful in about one message out of every ten thousand sent. As to Modic ( 2009 ) fraudsters can anticipate that persons will react to one missive out of every hundred. Among the respondents, at least, one individual in every hundred will direct the money. DragiA?eviA‡ ( 1999 ) notes that such frauds can be performed without important expertness or proficient cognition.
degree Celsius ) Electronic financess transfer offense
Today money flows through recognition and paying cards. Account balance is presented by a digital record of one ‘s bank history. Assorted signifiers of fraud and larceny of this money are hence taking topographic point in a digital signifier. There is frequently a nexus with an individuality larceny – the wrongdoer presents himself ( with a forged or stolen papers ) as the proprietor of a bank history and therefore victimize the banking system or the employee of the bank and has the money drawn for him from the victim ‘s bank history. More recent signifiers of fraud include fabricated investings in financess where culprits pose as bank or insurance agents roll uping money for their investings. They collect money from several victims who deposit money on a certain bank history ( set up with a false individuality ) , so they empty the history and disappear.7 5 We have recently been witnessing the alleged “ scareware ” plans which offer a free review of our system to verify if it is “ septic ” with malware ( damaging codifications like viruses ) . Free review reveals that the system is badly septic and that it needs to be cleaned. We are so offered to purchase the plan that eliminates the infection ( which of class was ne’er at that place, since it was generated by the plan itself ) . Therefore, the misled clients who are afraid that their system contains malicious codifications, buy the plan, although there was truly no demand for it. It is rather clear that this is an illustration of a internet fraud.
vitamin D ) Fraudulent investings
Assorted signifiers of fraud connected with investings, stock trading and concern pattern are included in this section. Clough ( 2010 ) lists illustrations of utilizing the Internet to act upon the stock monetary value – the alleged “ pump and shit ” or “ trash and hard currency ” cozenages. Perpetrators operate on Internet forums, where they affect the stock monetary value with false statements. Clough ( 2010 ) describes a well-known illustration of 11 wrongdoers who with the use of electronic mail and Internet forums unnaturally raised the monetary value of portions of Chinese “ penny stock ” companies and therefore earned about 3 million dollars. Assorted signifiers of fraud on Web pages are besides included in this section. Perpetrators create an Internet page that is supposed to be an online shop with first-class monetary values. Such web sites normally “ operate ” merely a hebdomad or two – merely plenty to victimize a certain figure of clients. The web site ( together with the culprits and the money ) will vanish before being reported to the constabulary.
vitamin E ) Identity larceny
Identity larceny is a new type of offense similar to fraud, where the wrongdoer steals the individuality of the victim and presents himself as the victim, doing in this manner harm to the individual whose individuality has been stolen. Adequate precautions of personal informations of the persons are provided by the Article 38 of the Slovenian Constitution. Personal informations define the features of a individual separating him/her from the other persons. The usage of foreign personal informations represents a serious intercession into one ‘s individuality, which can do enormous emotional or material harm. We should retrieve a BBC journalist who spent two yearss in detention in Slovenia, because a offense was committed abroad under his name ( the existent wrongdoer had used the passport of the journalist ) . There is no internationally recognized definition of individuality related offense. The Australian Centre for Police Research ( 2008 ) adopted some general definitions which are deserving mentioning: aˆ? Identity offense is a generic term to depict activities/offences in which a culprit uses a fancied individuality, a manipulated individuality or a stolen/assumed individuality to ease the committee of offense. aˆ? Identity fraud is the gaining of money, goods, services or other benefits or the
turning away of duties through the usage of a fancied individuality, a manipulated individuality, or a stolen/assumed individuality.
aˆ? Identity larceny is the larceny or premise of a preexistent individuality ( or a important portion thereof ) , with or without consent, and whether, in the instance of an person, the individual is populating or deceased. Identity larceny in pattern is committed in the undermentioned signifiers: aˆ? Credit card cozenages aˆ? Theft of information from databases aˆ? Social technology: use of people to swear the culprit with confidential information
III. RESULT AND DISCUSSION
Let us take a expression at the Criminal Codes and statute laws of other states to see how they deal with the job of computer-related fraud and misrepresentation. Comparative attack is an indispensable method of condemnable jurisprudence methodological analysis, since it provides a comparing of accomplishments and attacks of other Legislators and condemnable jurisprudence theoreticians. As indicated above the condemnable jurisprudence is to follow the alterations of the new engineering and adapt to the new signifiers of offenses this engineering brings. The solution to computing machine fraud quandary in Germany is hence the same as in Croatia. Furthermore, Austria has besides added a new Article to the Criminal Code ( Strafgesetzbuch, 1974 ) sing computing machine fraud. Article 148.a – Deceitful abuse of informations processing ( Betrugerischer tenverarbeitungsmi?brauch ) was added as a needed response to the demands of the Convention on Cybercrime. The first paragraph of the Article stipulates that whosoever, with the purpose of obtaining for himself or a 3rd individual an improper stuff benefit harms the belongings of another by impacting the result of informations procedure by a reconfiguration of a plan, entry, amendment, omission or by hiding of informations or other similar consequence or impact on the information, shall be apt to imprisonment of non more than six months or a all right. It is apparent that the statute law text is rather similar to that of Germany.
Frauds in computing machine systems are highly common offenses where wrongdoers prosecute economic involvements. Most common signifiers of computer-related frauds today are divided into the undermentioned classs: deceitful gross revenues online, advance-fee strategies ( besides called Nigerian frauds ) , electronic financess transfer offense, deceitful investings and assorted signifiers of individuality offense. The individuality larceny is, chiefly, a invariably germinating offense, going more and more of a menace to information systems and mundane online life. There are two basic visual aspects of fraud related to computing machine systems. The first 1 is where computing machine systems are used merely every bit assets to perpetrate a fraud ( the alleged direct computing machine fraud ) – which is conceptually non different from the traditional signifier of fraud. On the other manus, there are frauds committed against a computing machine system. The wrongdoer deceives or victimize a computing machine system in order to obtain fiscal addition ( without any personal misrepresentation whatsoever – which is an indispensable component of a traditional fraud ) . The alleged indirect computing machine fraud should, therefore, be recognized by a modern Criminal
Code as a condemnable offense. This can be achieved by implementing a particular offense of computing machine fraud into the Criminal Code or by broadening the construct of a traditional offense of fraud so that it is non limited to a mere deceiving of another individual. If the Legislator does non implement the computing machine fraud as a particular condemnable offense and fails to accommodate the traditional construct of fraud, the jurisprudence pattern is forced to happen a manner around such a hapless statute law. Since the Slovenian Legislator has failed to acknowledge the indirect computing machine fraud ( unlike all modern comparative condemnable codifications ) , the established jurisprudence pattern now defines the indirect computing machine fraud as expansive theft. This is an interesting attack, nevertheless, it is methodologically questionable and will non work in all state of affairss. Cybercrime is the fastest developing signifier of offense in today ‘s society. If the condemnable jurisprudence is to maintain up with the progresss of computing machine engineering, it has to be more unfastened to new condemnable constructs and more receptive to farther amendments to condemnable statute law. Computer-related fraud is a typical illustration of a new cyber offense offense. The traditional condemnable jurisprudence construct of fraud that was developed in the pre-computer epoch, must therefore adapt to this new phenomena. This is reasonably apparent in the Slovenian Criminal Code. Slovenian statute law as it stands today, does non run into the demands of the Convention on Cybercrime, and hinders the prosecution of computer-related frauds and calls, hence, for the demand to be amended.