SWITZERLAND A DIFFERENTIATED APPROACH TO FRAUD
Legal Era|December 2020
Swiss law interprets the offense of fraud in a special way where in addition to the characteristics of deception and damage as known in many jurisdictions, a qualified lie, i.e. a malicious approach, is required
Dr.Cornel Borbelly

As in many jurisdictions, fraudulent behavior is judged as a criminal offense in Switzerland. Actually, fraud is considered one of the most serious allegations in the field of white-collar crime. However, the Swiss version of this crime requires special elements which are unique in comparison with international versions of it. A simple deception is generally not sufficient to fulfil the requirements of this crime.

FRAUD ACCORDING TO SWISS LAW

According to the Swiss Criminal Code, anyone who induces an erroneous belief in another person by false pretences or concealment of the truth, or reinforces an erroneous belief, can be punished for fraud. By doing so, the person in error acts to the prejudice of his or another’s financial interests. From a subjective point of view, intentional behavior is required as well as a view to securing an unlawful gain for himself or another. Such a person is liable to a custodial sentence not exceeding five years or to a monetary penalty. If the offender acts for commercial gain, he is liable to a custodial sentence up to ten years.

The analysis of this crime thus shows the following objective elements:

An offender misleads a victim by deceiving the latter about facts. Statements about uncertain future events or forecasts are not subject to this crime. Such deception may also be conclusive or performed by suppressing facts. This deception causes the error; even if a victim doubts the truth of the deceiver’s assertion, this does not exclude fraudulent behavior per se. Finally, the error leads to a transfer of assets with damage as a consequence. Any impairment of assets is seen as financial loss which may consist in a reduction of such assets, an increase in liabilities or in the loss of profit. A mere endangerment of assets is generally not sufficient.

THE QUALIFIED LIE IN PARTICULAR

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