Fraud: issues of defining the sign of "gratuitousness" and distinguishing from arbitrariness

Abstract

The article discusses the interpretation of the term “gratuitous”, which characterizes theft. There is a nonuniform approach in the theory of criminal law to the understanding of this term, which entails a proposal to exclude it from the criminal law. Special attention is drawn to the fact that the amount of theft in case of unequal compensation must be determined based on the difference between the value of the stolen property and the cost of compensation. The authors analyze the practice of the courts of appeal and cassation instances and come to the conclusion that judges make mistakes when distinguishing fraud from arbitrariness.