Η ηλεκτρονική εγκληματικότητα και ειδικότερα η προβληματική της διάταξης 386Α Π.Κ. (απάτη με ηλεκτρονικό υπολογιστή)
Αλεξανδρόπουλος, Κωσταντίνος Δ.
Διαδίκτυο -- Δίκαιο και νομοθεσία -- Ελλάδα Υπολογιστές -- Δίκαιο και νομοθεσία -- Ελλάδα Ποινικό δίκαιο -- Ελλάδα Απάτη στο Διαδίκτυο
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
In this paper the author tries to set boundaries betweeneconomic and cyber crime and examine specifically the notion and thecostititutive elements of computer fraud prescribed by the article 386AGreek Penal Code. He also expresses his serious preoccupationconcerning the assimilation or the separation of this kind of fraud fromthe “common” fraud prescribed by the article 386 Greek Penal Code.More specifically, the traditional formulation of the fraud provisionpresupposes that the offender influences the mind of another person byfalse information or by illegal concealment or suppression of facts.Consequently, computer manipulations constitute fraud only in cases inwhich a person checking the data has been deceived. Therefore, Law No1805/1988 added a specific provision which punishes as fraud,(COMPUTER FRAUD) computer manipulations made with the intent ofenriching the offender or another with unlawful gain even if no personhas been deceived. Protected legal interest is property.The opinion that general financial interests, are additionallyprotected cannot be approved because of the comparison of the newprovision with the traditional fraud offence.The enumeration of the modes of perpetration has indicativecharacter. Improperly programmed is a computer when the results do notcorrespond to the will and the intention ofthe right holder.Interventions of a program are all the manipulations during the runof a program.With the use of incorrect or incomplete data the legislator coversmost of the cases that were not punished by the traditional provision offraud. Incorrect is the data if it does not correspond with the reality, andincomplete when it expresses only a part ofthe reality to which it refers.vThe element of interference with the course of data processing hasbeen considered to include every intervention which is not covered by theabove mentioned ways of perpetration. This includes any interventionwith the hardware of the systems as well as all consol-or outputmanipulations. This modus operandi is very valuable because it can coverabuses of cash dispensers since there is no other penal provision whichpunishes them.In the traditional crime of fraud it is important that the persondeceived makes a disposition of property. In Art. 386A Greek CriminalCode such an element does not exist and the question arised whether ornot this disposition is necessary. A disposition of property is an elementconnected with the concept of fraud. And because the expressed will ofthe legislator was to create a provision similar to the traditional fraudcrime, the disposition of property remains a conditio sine qua non of theprovision.If we accept that the disposition of property is not a necessaryelement of Art 386A the new crime does not contain a very important characteristic offraud: the victim suffers damage through its own action.In the case of computer fraud the “victim” is the computer and therelation between the criminal behavior and the damage of a propertyconsists of the disposition which is the result of the manipulated dataprocessing. In accordance with the traditional crime of fraud, it is notnecessary that the computer which makes the disposition of propertybelongs to the person who suffers the loss (e.g. in case that a manipulatedcomputer of a barile charges its clients with non-existing bills, so-calledtriangular fraud).By closing this summary we must say that a consequence of thedevelopment of information technology is that in a lot of cases theexisting provisions can not solve the new legal problems arising andvithat’s because the technology runs faster than the law. Therefore, anadoption ofspecific provisions in some parts ofthe law (legislation on theprotection oftrade secrets, copyright law) and the addition of new parts isindispensable. Additionally, the transborder character of informationmakes an international cooperation and coordination for the solutionsproposed and adopted necessary and the assistance of the informationtechnology industry during the empirical researches of academics andscientists valuable.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", Κατεύθυνση Ποινικό Δίκαιο και Φιλοσοφία του Δικαίου, 2007