Fraud & Abuse - Prijevare i zlouporabe
Da biste razumjeli pojam PRIJEVARE I ZLOUPORABE ne trebate biti stručnjak za područje kaznenog prava, iako je to velika prednost, ali da bi ste znali prepoznati i detektirati bitno je prepoznati neke zajedničke karakteristike.
Jednu od najboljih definicija, koja je zajednička svim pravnim odredbama i nacionalnim zakonodavstvima, bez obzira u kojoj ste zemlji dao je dr.Joseph T.Wells osnivač „ACFE- Association of Certified Fraud Examiners“ u svojoj knjizi „Corporate Fraud Handbook“
Zbog gubitka značenja u prijvodu dajemo prikaz izvornog teksta:“
FRAUD AND ABUSE
Occupational Fraud and Abuse is defined as „the use one's occupation for personal enrichment through the delibarate misuse or misapplication of the employingorganization's resources or assets. This definition's breadth means that it involves a wide variety of conduct by executives, employees, managers, and principals of organizations, ranging from sophistacated inwestment swindles to petty theft. Common violations include asset misaproppriation, financial statement fraud, corruption, pilferage and petty theft, false overtime, use of company property for personal benefit, and payroll and sick time abuses. Four elements common to these schemes were reported by the Association of certified Fraud Examiners (ACFE) in its first Report to the Nation on Occupational Fraud and Abuse, released in 1996:
„The key is that the activity (1) is clandestine,
(2) violates the employee's fiduciary duties to the organization,
(3) is commited for the purpose of direct or indirect financial benefit to the employee, and
(4) costs the employing organization assets, revenues, or reserves.“
An employee, in the context of this definition, is any person who recieves regular and periodic compensation from an organization for his or her labor. The term is not restricted to the rank-and-file staff members; it also includes corportae executives, company presidents, top and middle managers, contract employees, and other workers.
In the broadest sense, fraud can encompass any crime for gain that uses deception as its principal modus operandi. Of the three ways to illegally relieve a victime of money-force, trickery, or larceny-all offenses that employ trickery are frauds. Thus deception is the linchpin of fraud.
However, while all frauds involve some form of deception, not all deception are necessarily frauds. Under common law, four general elements must be present for a fraud to exist:
- A material false statement
- Knowledge that the ststement was false when it was uttered
- Reliance of the victim on the false statement
- Damages resulting from the victim's reliance on the false statement
The legal definition is the same whether the offense is criminal or civil; the difference is taht criminal cases must meet a higher burden of proof.
The term fiduciary, according to Black's law Dictionary, is of Roman origin and refers to One who owes to another the duties of good faith, trust, confidence, and candor. The term fiduciary relationship is further defined as
A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships-such as trustee-beneficiary, guardian- ward, agent-principal, and attorney-client ̶̶ require the highest duty of care.“ „