Gloss to the Judgement of the Supreme Court of 17 October 2018 (II KK 73/18)

Abstract

The gloss refers to the problem of the impact of bank employees’ performance on borrowers’ liability for fraud. The author approves the view formulated in the thesis of the Supreme Court that the employees of the injured bank were obliged to exercise special diligence in checking the accuracy of the documents submitted by the accused necessary to obtain a loan. The position taken by the Supreme Court in the commented judgement can be considered as at least a partial departure from the previous jurisprudence of the Supreme Court accepting that the victim’s contribution to the occurrence of fraud is not relevant to the responsibility of the perpetrators. The author, starting from the results of victimological research, accepts the view that the basis of criminal liability for fraud is the complex behaviour of the perpetrator (extraneous) and representatives of the injured bank (intraneus) and their mutual activity. In the last part of the commentary, the author indicates the specific obligations of banks when granting loans. He also emphasizes the inclusion in civil law of the victim’s contribution to damage as a basis for its mitigation.