Scam
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The crime of fraud is based on the use of deception to induce another person to do something that causes patrimonial damage, whether it is their own or someone else's. This crime is included in article 248 of the Criminal Code, specifically, in Title XIII of crimes against property and against the economic order, Chapter VI, of fraud, Section 1 of fraud.
This offense carries a prison sentence of six months to three years, depending on the amount defrauded.
Basic Elements
This crime establishes a series of elements that are necessary to be considered as such:
First of all, the deception must be enough to induce confusion, which is linked to the fact that, if enough deception has been achieved, the conduct cannot be otherwise than intentional, that is, there is fraud.
Secondly, it is a crime against property, so the fraud does not occur until it has been damaged. Therefore, the protected legal right is the patrimony.
Thirdly, it must be for profit, that is, with the objective of obtaining an economic benefit.
And, finally, a causal relationship is required in which the deception causes the error/confusion, this error causes property damage and the property damage causes damage to the victim.
Different types of scam can be distinguished, from the basic type described above, the procedural scam, the computer scam, etc.
Computer Scam
Currently, computer fraud is regulated in article 249.1 a) of the Spanish Penal Code.
This type of fraud arose for the first time in the Criminal Code of 1995 due to the need for a criminal type that covered intangible assets. Even so, this was intended to condemn fraudulent actions carried out with bank cards at ATMs. For this reason, the rest of computer actions were relegated to the criminal category of basic fraud.
The problem with the basic scam is that it requires quite a bit of deception to be committed, the element of which is hard to attribute to cybercrime, since you can't fool a machine. Given this, the subtype of computer fraud was included in article 248.2 a), although it is currently included in 249.1 a).
In this new subtype, the main element of the scam is eliminated, which is deception, that is, misleading someone, since the damage to assets as such is done by the machine, not the person. Therefore, the crime of computer fraud is based on computer manipulation, in which deception does not occur, which causes an unwanted transfer, which causes harm to someone (himself or another person).
On the other hand, there is also credit data fraud, which, although it is a different subtype, can also be considered a computer crime in the case of the theft of credit card data using instruments technological.
Types of computer scams.
Dialer.
It is a malicious program designed to make telephone connections from numbers with a special rate of very high cost through the modem, without the telephone users themselves noticing, due to little, deficient or non-existent information. It is usually carried out through pages of dubious origin, in which the user is forced to download programs in order to continue enjoying their contents, which, once installed on our computer, create an Internet connection (different from the one normally used). through a telephone line.
Following the normal operation of Internet connections, every time a user connects, the modem dials a series of specific numbers and a "call" is made to their Internet provider. The usual cost of these "calls" are those that have been agreed upon when contracting said service. On the other hand, the Dialer program takes advantage of the call to the provider to change the series of numbers that the modem dials, establishing a number from a foreign provider, charging the special rate as it is an international call.
Generally, the user is not aware of this change and this is where the illegality of the act appears, since, legally speaking, the Dialer is not an illegal program as long as the intended use is clearly and concisely stated. to make this, something that is unusual, since otherwise the users would not accept.
Buy online.
In this case, both the customer can be victims, due to the purchase of a product that does not exist, that is not delivered or that does not comply with what is established in the advertisement, as well as the seller, due to alterations in the payment of the product. In fact, although customers' fear of being scammed is the main problem that online commerce does not evolve as expected/intended, according to a study carried out by the AECE (Spanish Association of Electronic Commerce) those most affected by scams of this type are the companies and not the consumers.
Trashing.
This is actually a rarely used technique. It is also called the Dumpster diving technique that is based on the collection of private information that had previously been deleted by the user.
Phishing.
This is the technique most similar to the basic type of scam in that, through social engineering, it uses deception to obtain information. In this, the criminal sends many messages to the victim apparently from web pages known or trusted by the victim, such as the bank, post office or a store where they usually buy (eg Amazon). These messages include phrases that attract the attention of the victim, such as "account verification", "package stopped at customs" or "discounts...", which, together with the apparent official nature of the sender of the message, are deceived.
In addition, in these messages, links usually appear that redirect to pages very similar to the official ones and in which the victim is asked for private information that will finally reach the offender.
Currently, a distinction is also made between Vishing and Smishing due to the increase in users who are more aware and more cautious with the emails they receive. Both are Phishing techniques carried out through VoIP (a technique that allows you to make or receive calls over the Internet, such as those that can be made through WhatsApp) or SMS.
Pharming.
This is a technique in which the DNS system is infected by a Trojan horse or other program. This system is in charge of associating the IPs corresponding to each entered domain, that is, each time a user searches for a web page and writes it, the DNS encodes the words entered and associates them with the IP registered for that page.
Now, pharming alters the DNS causing that, when looking for a web page, the DNS associates it with the IP of the duplicate web page, and therefore, an unofficial one. Once on this duplicate page, the user will hardly be able to distinguish between one or the other and by inserting private data, such as credit card data, criminals will have access to all of them.
Spyware.
This is a program that, when installed on the user's computer, spies on their activities every time they connect to the Internet. Thus, they collect information without their consent, violating confidentiality rights. It is generally used for commercial purposes, as user activity is collected, such as what pages you have visited, how long you were on them, etc. to later sell it (so companies can see when we are interested in some products and advertise, or send messages).
Even so, within spyware we also find keyloggers, which are capable of analyzing the keys pressed on the keyboard to decipher codes, usernames, passwords, etc.
SPAM.
This is the massive sending of messages not consented to by the user, generally advertising. This technique as such is not a crime (at least in Spain), but it is usually a previous step to discriminate between victims and commit other crimes. However, it is one of the illegal methods used to collect email addresses, which, on many occasions, are necessary for other computer crimes.
Legislation of other countries
Scam in Peru
The Peruvian Penal Code regulates the crime of fraud in article 196: «Anyone who seeks for himself or for another an illicit advantage to the detriment of a third party, inducing or keeping the victim in error through deceit, cunning, trickery or another way fraudulent, will be punished with a custodial sentence of not less than one nor more than six years.
Article 197 of the same legislation establishes the typical cases of fraud. Fraud will be punished with a custodial sentence of not less than one nor more than four years and a sixty to one hundred and twenty-day fine when:
- It is done with trial simulation or use of other procedural fraud.
- It is abused by a blank signature, extending a document to the detriment of the signatory or third party.
- If the commissioner or any other president alters in his accounts the prices or conditions of the contracts by supposing expenses exaggerating those he had made.
- It is sold or gravel, as free goods, those that are litigated or are seized or encumbered and when sold, taxed or leased as own other property.
Scam law in Peru
- That according to article 196 of the Criminal Code, the typical conduct of the scam offence is that the agent, in his or her profit or a third party, by deceit, cunning, ardid or other fraudulent manner, induces or keeps the victim in error, in order to get the aggrieved person to transfer him/her to his/her domain, his/her own property, that is, the means to commit the present crime, the misleading,
- The offence of scam is configured when the agent making use of deception, astuacy, ardid or other fraudulence induces or fails the passive subject in order to cause the offender to get rid of his or her property or part of it and voluntarily surrender him to the offender in his or her direct undue benefit or to a third party; a crime that becomes consummated at the same time that the agent obtains the undue economic benefit.
- The constitutive elements of the scam are: deception, absence, ardid and another fraudulent way by misleading the victim in such a way as to undermine his property for the offender.
Scam in Mexico
In Mexico, the frauds foreseen and sanctioned by its criminal legislation constitute, specifically, autonomous crimes and to solve the old classification conflicts, the regulatory exposure system of the crime changed radically, and currently there is no distinction between generic fraud and the specified; all of them are listed separately and autonomously, having each one of the legal types of fraud, as constitutive.
SCAM CONCEPT
The crime of fraud has a complex nature, so much so that it is impossible to identify whether or not a conduct is pertinent to its scope. This, at the practical level, due to its constant mutation of modalities, being confused, in general, with other illegal acts against the properties.