It is a maneuver that is used in the legal field that consists of the violation of a norm, in order to protect itself from another norm or legal provision. Through the law fraud there are behaviors that are apparently lawful, but that in the end they produce a result that is contrary to the Law in which it is protected or prohibited by another norm.
When is a Law Fraud committed according to the Law?
Un Fraud of law is committed when a legal act is carried out using a Coverage Law With the aim of achieving acts that are inappropriate to this norm and, apart, turn out to be contrary to another Law, or even to the legal system. With this we want to limit, that it is a coverage law used to hide the Defrauded Law.
According to Art. 6.4 of the Civil Code, as well as 11.2 of the Organic Law of the Judicial Power, the legal figure is regulated, where the fraudulent act must be an end condemned by another regulation of the order.
Art. 6.4, of the Civil Code, quotes verbatim:
"The acts carried out under the protection of the text of a norm that pursue a result prohibited by the legal system, or contrary to it, will be considered carried out in fraud of law and will not prevent the due application of the norm that has been tried to evade."
And Art. 11.2, of the Organic Law of the Judicial Power, verbatim indicates the following:
"The Courts and Tribunals will fundamentally reject the petitions, incidents and exceptions that are formulated with manifest abuse of rights or involve legal or procedural fraud."
Therefore, studying law fraud, we can emphasize that this seeks the fact of «Camouflage or disguise an adopted behavior as if it were another in order to circumvent a certain norm ». For this reason, the Civil Code sanctions this technique adopted from a legal norm, something that the "Jurisprudence" tends to qualify as "Pseudo legal".
This situation occurs because through this technique it is tried to demonstrate a supposed legalizedd, assuming that it is not intended to carry out a direct infringement, which in such case would imply the radical nullity of the respective act or legal business carried out.
This type of law fraud occurs very frequently in cases such as the hiring of false self-employed workers or in donations that are disguised as purchase-sale operations with the intention of defrauding the tax law.
What are the requirements that must be taken into account to know that a fraud of law has occurred?
For law fraud to take place, there must be a coverage law and, therefore, a defrauded law that it is intended to circumvent. So that the "Jurisprudence" may consider a fraud of law, the following requirements should be considered:
- For this type of "law fraud" acts, not only intentionality is sufficient, but the respective legal act must be produced.
- The legal act carried out supposedly legal, must violate the ethical content of the precepts of the norm in which it is protected or covered.
- It is irrelevant whether or not the offender has the intention of circumventing the defrauded rule, since only the fact that an illicit result occurs is considered sufficient.
- As for the act, it must be considered contrary to the practical purpose of the respective fraud rule.
- The coverage standard used to protect the act or legal business carried out is not directly stated.
What are the effects of law fraud?
The acts or businesses carried out in the territory of law fraud, does not prevent that the norm to which it was tried to evade can unfold its effects. According to Art. 6.4 of the aforementioned Civil Code, it indicates that the main effect produced by law fraud is based on undoing the supposed protection that the coverage norm can grant to the act carried out and subjecting it to the precepts of the law that has been defrauded and attempted to circumvent.
Therefore, and finally, it is stated that legal businesses are subject to the Regulatory Regime that is intended to be avoided. In other words, the legal acts or businesses that are carried out will only be void if they are simulated or if they present any illicit cause.
