Application of Article 190 of the Criminal Code of Ukraine: The Boundary Between Fraud and Civil Disputes

«A failed performance of the contract, even if it results in losses, should not automatically be construed as fraud,» – note Taras Poshyvanyk, partner at EQUITY, Ilona Mylostiva, Senior Associate at EQUITY, in their commentary for Yuridychna Praktyka.

In the article, the authors analyze one of the most pressing issues of 2025 — the misqualification of commercial relations as fraud,where the matter actually concerns ordinary non-performance of contractual obligations rather than criminal conduct.

The material explores: 

• The distinction between a civil law dispute and a criminal offense;
• The Supreme Court's jurisprudence on differentiating fraud from commercial and contractual relations;
• The ECHR'S position regarding the inadmissibility of criminal prosecution in ordinary business disputes;
• The key criteria for establishing fraudulent intent and legal available to the defense to substantiate the good faith of the accused’s actions.

The authors emphasize that the determining factor in distinguishing fraud from a civil law dispute lies in the intent of the person involved. If at the moment of contract conclusion,the individual had no genuine intention to perform the contract, such conduct qualifies as fraud.

Conversely, a bona fide intention followed by subsequent difficulties in execution should be treated as a civil law matter, not a criminal offense.