The impossibility of omissive “preventative swindling”

Abstract

This paper aims to analyze what has been called “social security fraud”, and we give an example of a specific case to demonstrate this type of fraudulent behavior, in the example case, a relative of the beneficiary who had passed away did not inform the military administration or the INSS, and continued to receive and withdraw the benefits after the death of the beneficiary. Such a conclusion can be reached by analyzing this type of fraudulent crime, the principles of legality and the criminal relevance of the omission, which will be drawn from a study of these aspects from a legal and doctrinal point of view. The issue is of great importance, especially in the number of cases that are regularly brought before the military courts, as well as the common court system. What the casuistry reveals is that the misappropriation of funds related to social security benefits can occur in several ways, so that the use of labels, such as “social security”, should be abandoned and a solution reached in the light of a specific case. This present work, is intended to demonstrate that the simple act of not reporting a death to the Military Administration or to the INSS can not be included in the type provided in art. 251 of the Military Penal Code, whose caption is similar to that of art. 171 of the Criminal Code, which is why, the considerations made here, as a rule, are valid not only for the Military Court.