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IT goes without saying that the Court of Cassation is a source for interpretation of legislative work, particularly the law, with the principles it establishes through its rulings.
This is due to the fact that the judge of the Court of Cassation uses his intellect and experience to interpret the legal rules, and seeks the wisdom of the legislation. Therefore, his rulings are considered judicial norms that can be referred to, and reliable precedents so that there is no flaw in the future rulings.
Based on this principle, the Court of Cassation built the rulings related to the issue of the dud cheque, and considered it a tool of fulfillment that does not carry bad faith, but rather a purely commercial transaction.
It is a principle that many countries have established in their modern laws, after judges sensed premeditated bad faith through the creditor’s insistence on the debtor to issue a cheque, knowing that he has no funds. This is a kind of blackmail because failure to pay the amount was considered a criminal case.
This strange legal principle is still in effect in Kuwait, although there are many rulings issued by the Court of Cassation that deny it.
However, stakeholders insist on circumventing the principles derived from the Court of Cassation by refusing to legislate what renders a dud cheque not a crime that requires physical coercion to be exercised on its issuer.
That is why I began demanding since 1999 the abolition of the so-called “penal protection”, which is imprisonment, to relieve pressure on the investigative authority, the judiciary, and the relevant agencies.
In addition, when banks issue a cheque book to a customer, they are confident that he has solvency; otherwise they would not have done so. For greater credibility, there is the so-called “certified cheque”.
For this reason, most countries in the world have abolished the laws that criminalize the issuance of dud cheques, and considered it a commercial transaction that does not amount to physical coercion.
In Kuwait, it is completely different because the legal principle was based on an error, and the legislator did not view the provisions of the Court of Cassation as reliable principles for updating legislation.
Therefore, the creditor must preserve his right by knowing whether the debtor has enough funds or not.
Those with bad intentions are working to establish the principle of coercion, which is why they refuse to abolish this crime. This is happening at a time when many observers and jurists are calling for amending the law, because they are relying on principles established by the Court of Cassation.
In banking transactions, there are collateral assets against the loans granted to customers. Therefore, when the bank lends, it works on the principle of long-term loyalty.
This is because it realizes that the borrower only resorted to it because he has outstanding assets and is able to pay back; otherwise the banks would throw people in prison.
Hence, the physical coercion practiced in this case contradicts the spirit of legislation and legal principles. It was appropriate for the time when transactions were based on the principle of enslavement and not equality among people.
There is no doubt that decriminalizing the issuance of dud cheque enhances the financial cycle, because it gives the beneficiary the freedom to work in order to repay the debt. But if he is thrown in prison, the creditor loses his money because he prevented the debtor from working.
Therefore, abolishing the law and resorting to the principles established by the Court of Cassation has become a strong necessity today.
Finally, it must be said that those who insist on criminalizing the issuance of dud cheques are the loan sharks and consumer companies who built their principle on bad faith and use the state to collect their debts.
This is why we say to the people’s representatives: Rally behind the popular issues.
By Ahmed Al-Jarallah
Editor-in-Chief, the Arab Times
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