Liability in Case of Unlawful Use of a Checkbook
Liability in Case of Unlawful Use of a Checkbook
1. Introduction
Checks are one of the most commonly used payment methods in commercial life. The reliability of a check depends not only on the issuer's responsibility but also the correct and lawful use of the checkbook . Checkbooks obtained from banks provide legal security for both the issuer and the holders.
However, in practice, serious disputes arise due to the unlawful use of checkbooks. Giving a checkbook to unauthorized persons, allowing someone else to use it, using it for forgery, or using it despite a ban on issuing checks, results in liability under both private and criminal law.
2. The Concept and Legal Nature of a Checkbook
A checkbook is an official document issued by banks to their customers in accordance with regulations, containing serial numbers and check leaves.
- The Turkish Commercial Code (TTK)specifies the formal requirements for checks.
- The Czech Law No. 5941sets forth provisions regarding the issuance of checkbooks, the opening of check accounts, and prohibitions on issuing checks.
- A checkbook is a tool used under the supervision of banks and functions as a legally secure means of payment
3. Cases of Unlawful Use of a Checkbook
3.1. Allowing Unauthorized Persons to Use
A checkbook may only be used by the person who opened the account or their authorized representatives. Issuing checks to unauthorized persons constitutes exceeding the authority of representation or unauthorized representation and will result in legal liability.
3.2. Use of Checks Despite the Prohibition on Issuing Checks
According to Law No. 5941, it is prohibited for individuals who have been banned from issuing checks to use checkbooks. If a check is issued despite this ban, both the bank and the issuer will be held liable.
3.3. Counterfeiting and Falsification
The unlawful acquisition of a checkbook and the issuance of a counterfeit check, or the alteration of an existing check, constitutes the crime of forgery of an official document
3.4. Transfer of the Checkbook to Another Person
Checkbooks are non-transferable. However, in practice, it is sometimes observed that check leaves are given to someone else and used. In this case, the issuer of the check remains liable.
3.5. Opening a Checking Account Without Procedure
It is also illegal for banks to open checking accounts and provide ledgers without exercising due diligence. Banks are held liable, especially if ledgers are provided to individuals who do not have a commercial registry record or who are prohibited from doing so.
4. Types of Legal Responsibility
4.1. Responsibility of the Drawer (Issuer)
- A person who uses a checkbook unlawfully is primarily liable to the creditor, the holder.
- Since a check is a negotiable instrument, the drawer's liability an abstract acknowledgment of debt .
4.2. Banks' Responsibility
Banks, in accordance with the Check Law No. 5941:
- Doing the necessary research when opening a checking account,
- Not giving checkbooks to banned individuals,
- They are responsible for preventing the misuse of the ledger.
Otherwise, the holder can file a compensation claim against the bank.
4.3. Responsibility of Representatives
When a checkbook is used on behalf of a legal entity, the legal entity may be held liable for checks issued by unauthorized representatives. However, the right of recourse in internal relations may arise later.
5. Responsibility under Criminal Law
5.1. The Crime of Issuing a Bounced Check
The most common type of crime when a checkbook is used illegally is issuing a bounced check. Regarding the perpetrator:
- Judicial fine,
- Prohibition on issuing checks,
- Failure to pay will result in imprisonment.
5.2. Forgery of Official Documents
Issuing a forged check using someone else's checkbook constitutes the crime of forgery of an official document under Article 204 of the Turkish Penal Code.
5.3. Fraud
If the misuse of a checkbook is done with the intention of deceiving the other party, it also constitutes aggravated fraud
6. Supreme Court Decisions
- The 19th Criminal Chamber of the Supreme Court of Appeals, Case No. 2016/10245 E., Decision No. 2018/5674 K., states: "Due to the use of a check leaf despite the prohibition on issuing checks, the defendant shall be subject to a judicial fine and a ban on issuing checks."
- The 11th Civil Chamber of the Supreme Court of Appeals, Case No. 2015/4358 E., Decision No. 2017/2211 K., stated: "If a bank issues a checkbook to a prohibited person without exercising due diligence, the bank is also liable for the damages suffered by the holder."
- Supreme Court Grand Chamber, Case No. 2012/19-375 E., Decision No. 2014/542 K.: “The unlawful transfer of a checkbook is invalid, and the issuer cannot be absolved of original responsibility.”
7. Problems Encountered in Practice
7.1. Checkbook Forgery
It is very common for others to issue forged checks when the ledger is lost or stolen.
7.2. Inadequate Supervision of Banks
It has been found that some banks have been issuing checkbooks to prohibited individuals. This situation undermines the credibility of checks.
7.3. Unauthorized Representation by Legal Entities
Another significant problem is company partners or employees using checkbooks without authorization.
7.4. Severe Criminal Sanctions
There are criticisms that the penalties given for bounced checks and forgery are disproportionate.
8. Views on Doctrine
Hard View
When checkbooks are misused, severe penalties are necessary for business security. Banks must also assume broad responsibility.
Flexible View
Instead of criminal penalties for errors in checkbook usage, compensation and administrative sanctions should be prioritized.
9. Proposed Solutions
- electronic checkbooks .
- Banks should have increased liability, and should face heavy compensation obligations if they provide ledgers to prohibited individuals.
- education and awareness campaigns, the business world should be informed about the legal use of checkbooks.
- Control mechanisms for legal entities should be strengthened.
10. Conclusion
A checkbook is an important tool for ensuring the reliability of commercial transactions. However, its unlawful use creates serious liabilities for the issuer, the bank, and third parties involved.
- In terms of private law: The regulator and the bank are liable.
- From a criminal law perspective: offenses such as issuing bounced checks, forgery, and fraud come into play.
- Supreme Court rulings: They strictly enforce the responsibility of banks and regulators.
In conclusion, the lawful use of checkbooks is essential for the security of commercial life and the continuation of the economic order.
Gozdenur Turna
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