FRAUD AS AN ELEMENT OF FRAUD IN THE JUDICIAL PRACTICE OF UKRAINE AND THE USA

Abstract

The article examines the content and signs of fraudulent fraud in economic legal relations through the prism of the judicial practice of Ukraine and the United States of America. The purpose of the study is to determine the criteria for distinguishing criminally punishable fraud from other forms of deception, unfair business conduct and civil torts. The approaches of the Anglo-American legal tradition to understanding the legal nature of fraud, the features of its civil and criminal dimensions, as well as modern trends in the development of US federal legislation in the field of combating fraudulent practices are analyzed. Particular attention is paid to the analysis of a number of landmark decisions of American courts, in particular in the cases of United States v. Regent Office Supply Co., United States v. Takhalov, Lustiger v. United States and Kousisis v. United States. On this basis, approaches to establishing the boundaries between ordinary deception and fraud, criteria for the materiality of false information, the significance of the materiality of information for the expression of the victim’s will, and the role of property interest in the structure of fraudulent encroachment are revealed. It is proven that in American practice, primarily fraud that concerns the essential terms of the transaction and affects the economic interests of the participants in business relations is recognized as criminally significant. Based on the analysis of the practice of the Supreme Court of Ukraine, criteria for distinguishing fraud from civil law disputes related to non-fulfillment of contractual obligations are formulated. It is substantiated that the establishment of the initial intention of a person to seize someone else’s property by deception is of decisive importance. A conclusion is drawn on the expediency of wider use by domestic judicial practice of a substantive analysis of the direction of fraud, its materiality, and its impact on the property interests of the victim. Common and distinctive features of the Ukrainian and American approaches to the criminal-legal assessment of fraudulent manifestations in the field of entrepreneurial activity are identified.