ADVOCATE ISRAEL

Criminal Appeal No. 6350/93
Criminal Appeal No. 6391/93
State of Israel
vs
Arie Goldin based on 6350/93
Arie Goldin
Against
State of Israel based on 6391/93

This document was translated by computer software without human contact, so there may be significant errors in translation: please do not rely on the translation without obtaining appropriate advice with a certified Israeli advocate / lawyer

Supreme Court sitting as - criminal appeals court
[11.9.95]
Before Judges A. Goldberg, T. Light, Y. Zamir

Penal Law, 1977, Book of Laws 226, sections 2 (The term "possession"), 383, 383 (a), 383 (a) (1), 383 (a) (2), 3833 (c) (1), 383 (c) (3), 384, 386, 387, 390, 391, 392, 393, 390-393, 393 (2), 415, 416, 418, 420, 423 - Criminal Law Ordinance, 1936 , AR Tos 1, (H) 263, (a), 285, Section 263 (1) - Law mission, Tsc"h 1965, Book of Laws 220, Section 10 (a) - Companies Ordinance [New Version ], תשמ"ג 1983, NK 764, Section .105

Mini - Ratio:
* Penalties - criminal - Holding
* Penalties - offenses - theft
* Penalties - offenses - theft on - by a licensed
* Penalties - offenses - receiving nothing Bmirmh

Appellant oral 6391/93 (hereinafter - the appellant), a company CEO, was convicted, District Court, among others receiving nothing Bmirmh aggravated circumstances - a crime under Article 415 of the Penal Law, 1977; theft by a manager - an offense under Section 392 of the Penal Code; theft by unauthorized - an offense under section 393 of the Penal Code; false registration of corporate documents - an offense under section 423 of the Penal Code. The court sentenced to imprisonment of nine years and a half, some six and a half years' imprisonment and three years in prison - about - terms and a monetary fine in 000, 150 NIS. Appellant's appeal turned on some malice. Undermines oral 6350/93 achieves the lightness punishment brothels on the appellant. In terms of hierarchy the appellant was subject to the board Reference eight associate Binolbin Council, however, this subordination is expressed only when asked to design a policy decision regarding the company. The conduct of current company enjoys great independence appellant . indictment Finansit picture tells a complex, which were involved in creating internal companies controlled by the appellant, straw accounts at banks and an extensive and sophisticated documents and accounts designed to distract. All operations were made without knowledge of the appellant and other factors in society, and

Conceal his actions, he did not hesitate, among other things, forging signatures, documents and drawings and make use of fake passports. In light of the investors is the appellant's request proposal to invest in the company, in exchange for a promise, is also given without the knowledge of other factors in society, a higher return than the conventional system normal banking. The appeal of the appellant, concentrating in several episodes of the original indictment, deals, among other things, questions the relationship between crime theft offense Hmirmh, including the possibility that a single physical action will throw the two offenses. Another issue dealt with whether it is possible that physical action will throw two theft offenses, one against the other company to the investor.
The Supreme Court ruled: N.
A.. (1) the social interests which come from injury to defend theft offense is a right to possession. This conclusion arises from the definition of behavior thief Cmshig possession, as provided in section 383 (a) (1) together with Section 383 (c) (1), or the sender legally held property hand in hand, as stated in Section 383 (a) (2) of the Penal Code. Expanding the definition of ownership for the crime of theft, beyond the civil law standard definition, so it also includes the strongest asset, or right Lhhazkto, shows that the offense came to protect against attacks (28 d - f).
(2) with "basic offense of theft, fixed section 384, set clauses 390 to 393 of the Penal Code and special situations of theft, identity thief is unique and special status that he has had the property owner. These offenses also violate the right to possession of the property owner is also a violation of duty of loyalty owed thief, by status, owner (and 28 - M).
(3) offense Hmirmh distinct passes which is slipped around fundamentally social, social Cshayntrs it comes deception is a crime to defend freedom of will, freedom of action and freedom of choice of high (28 M).
At. (1) As usual, Cshmhzik property is not a dismissal, then if given the strongest asset on the basis of fraud by the recipient, there is no room convicted of theft under section 383 (a) (2) of the Penal Code. This application for Section 383 (a) (2) conditioned on strong yen as 'achieved'. Meaning as 'Gene' in this context is with the consent of the owner, clean all Cshscmh this defect (29 a - b).
(2) valid foundation strong is distinguishing between section 383 (a) (2) Law and Section 383 (a) (1), which was strong acceptance without consent of the owners or inadvertently given consent, as provided in section 383 (c) (1 ) (29 b).
(3) the timing of crystallization of a decision to accept a custom property owner is delimited the scope of the crime of theft under section 383 (a) (2) regarding the extent of crime Hmirmh. If formed the intention to drive the custom property owners after it achieved strong, then be theft under section 383 (a) (2), if there is no doubt about the legality of holding the property. If they are not committed an offense of receiving anything Bmirmh; so, if you receive the strongest asset does not benefit heart

Passed the resolution practice owners to drive it, it can not say that giving the property to him was based on misrepresentation. Opposite case, which formed the intention to drive the property owner passes for custom strongest asset, can not come out of his way of Section 383 (a) (2), conditional legality possession (29 d - f).
(4) If one is injured, no offense Hmirmh, delivered underlying asset, Dre coexist with theft offense subscription section 383 (a) (2) (and 29 - M).
C. (1) not all cases where the misrepresentation was the basis of delivery of the property will necessarily overlap between crime theft crime Hmirmh (30 a).
(2) the scope of crime Hmirmh broader scope of the crime of theft in terms of content display underlies the offense. Because the theft offense, the conditional existence of intention to revoke the permanent deprivation of property owners, specifically requires that this be the hidden intention of the thief. Moreover, the crime of theft Hmirmh too broad in terms of transfer rights of which a separate type of victim. While theft offense is doing and ran hard asset owned by him, the offense can do Hmirmh offense to win also owned (30 a - b).
(3) On the other hand, the crime of theft Hmirmh passes broad terms the nature of behavior, because, reading Section 416 of the Penal Code indicates that the term "trick" broader term "fraud" (30).
(4) the overlap between crime Hmirmh crime of theft would be an option when a separate asset on the basis reinforces a false statement which hides the underlying intention of declaring deny the permanent deprivation of property owners. In this case, also plays offense theft protection violation Hmirmh social interests came to defend him. Therefore there is no need to deploy the crime of theft of the Iriath Hmirmh offense (in 30 - c).
D.. When it comes to that hit, there can be no overlap between crime and the crime of theft Hmirmh subscription section 383 (a) (2) of the Penal Code, which is possible only when a subscriber theft section 383 (a) (1) (30 d - e).
The. (1) actions to take may require Reuben Levy win the civil law if there is between Levi and Reuben connection justifies the attribution of actions Reuben Levy. The most common bond is linked to all levels of mission (31 a).
(2) in this context does not necessarily say that the false representation, which constitutes a criminal offense, presenting a representative of someone before a third party, does not require the particular. Criminal prohibition that clung to deputize does not impair the validity of the mission always (31 a - b).
(3) In case where Levy is a corporation, applicability of provisions of law mission, Tsc"h 1965, only residual, the question of legal validity of actions carried out by requiring the organ will be decided primarily on the basis of Section 105 Companies Ordinance [New Version], תשמ"ג - .1983 rule, which Vactmt action to send an offense is committed to harm any case the validity of that action, will also apply when it comes to the company. For command, similar to the law, there is also the emphasis on external appearances of things (the 31 - and).

(4) If a false picture presented before Simon Reuben Levy credits the property rights, there is no reason to limit the protection of this right under the Penal Code. But even though the Penal Code he should deploy the defense the right Levi's strong, even if it was created by an offense committed against Simon Reuben, still have to examine whether the protection of this right will be in Section 383 (a) (1) or under Section 383 (a ) (2) of the Penal Code (31 M - 32 a).
And. (1) definition of ownership has been expanded in Section 383 (c) (3) of the Penal Code so that it extends also to those who possessed the right to hold, as opposed to actual holdings. Hence, if the fetus to deliver possession of the property owner actually be the power, if this requirement is necessary to form the offense under section 383 (a) (2), then empty the contents protection of those who has the right to hold property (32 a - b).
(2) underlying Section 383 (a) (2) the law is the assumption that doing something that constitutes a habit husbands stepfather sector rights and powers given to the owner, ideological equivalent Washing carry such section 383 (a) (1). Even if receiving the strongest asset was based on his desire, net of any fault, the property owner, then I got out of the property on - by using it for purposes incompatible with the will of the owner, taking ideological equivalent property owner strengthens Onshiato without their consent (32 in - c ).
(3) because the focus of Section 383 (a) (2) is in breach of confidence of those who allowed the thief to hold the property on his behalf, it does not matter whether this property came directly from the owner to the thief, or indirectly, by exercise of the right to hold property owners; provided that the property held by the long hand of the owner (32 c - d).
M. (1) civil law and should be sent to eligible to hold any assets of the mission even if joining inventory assets of his own mission was not due to the sender's subjective, or it was due to action made for himself (33 C).
(2) Mshmcir Civil right of a trustee to hold the "fruit of the poisonous tree" that can not be said for criminal law is a very strong property illegally. While in the first place did not give permission to the sender, not expressly or implied, for this action, may also prohibited to carry it out, but that in retrospect can be attributed to the agreement this property, assets belonging to the mission, held him on - by sending (33 c - d) .
(3) when told that the power to hold assets that reached him by sending the mission, not told that his hands freedom to do these assets whatever he likes. Duty of loyalty to all its operations to qualify the liberty of sending the property, and because he may Infringement criminal debt under Section 383 (a) (2) (33 d - e) (33 d - e).
H.. (1) conceptually offense against Shimon Hmirmh can settle with the possibility of theft offense also performed filler. The question is whether he deserves that swarm In this case the crime of theft offense Hmirmh side (34 a - b).
(2) behavioral element of an offense of receiving anything Bmirmh not identical behavioral component of the crime of theft. The offense of receiving anything Bmirmh result is an offense, and riding

Behavior is displaying a false claim, which results - Get it on the basis of this claim. The result of an offense that is a special kind of result, because it embodies behavioral component is receiving it (34 in - c).
(3) component due to the uniqueness of the result of crime Hmirmh may be cases where there is overlap between the behavioral component of another offense. If on the basis of a separate false representation Shimon Levy owned property and held it for the benefit of Reuben, Reuben believes he cut the contract as an extension of Levy, the offense Hmirmh perfect point in time when property owned by a separate high, as soon is unlikely that this point coincides delivery of possession in the property (34 C - d).
(4) When receiving the strongest asset blended with sending hand, in accepting the strongest complements the offense gives rise to Hmirmh theft offense. Under these circumstances, the launch point between Hmirmh crime of theft offense is not their ingredients behavioral component of the offenses, but the result of crime Hmirmh. So this is not a single physical behavior which both norms and weaknesses, but in two separate behaviors that maintain an internal connection between them (34 d - e).
(5) because that offense Hmirmh theft offense that differ not only the identity of the victims of them, but also - and especially - the social values that are essentially, the difference is the purpose of the ban justifies applicability of the two prohibitions incremental mask is factual, despite internal connection between them. When there is one chain of acts of crime each independent existence even though the internal connection between them, it can be considered in the context of punishment (the 34 - and).
T.. Since conceptually object theft offense is lesser ownership rights, as provided in section 383 (c) (3) of the Penal Code, not impossible that the right would be in the hands of another person, there is no prevention "technically" that taking property or asset of sending hand will throw two independent crimes of theft (35 a).
Y.. (1) When the - by the physical action of the various levels of casualties vested right, there is no justification to convict a number of theft offenses as the number of casualties (35 a - b).
(2) are different things because of strong blending Csbfgiah also breach the duty of trust owed thief each of the victims. If it is the duty of an independent trust suffered essentially different, it gives added value Infringement violation of the right retention, thus being denied identity and values of casualties. Umsnsllt identity values affected, the law opens the door to double. Because there is no preventive principle that a person Ihov double duty of loyalty, both the corporation which he serves as a third party and morality in his hands the strongest asset, there is no reason why a single physical action will throw both offense of theft by unauthorized and offense of theft by a manager (in 35 - c) .
(3) To sum up, nothing prevents in principle that certain facts will throw mask for various injuries crime fraud theft offense, as nothing prevents it will throw two independent crimes of theft (35 d).
Ya. (1) internal divisions between the two forms of theft offense, namely, Article

383 (a) (1) and Article 383 (a) (2) of the Penal Code, serves as a strong legal foundation delineates the boundaries of each. Application of the principles have to consider it that because of multiple characters is not impossible to have a legal relationship (including mission affinity) between the offense and the victim does (35 d - e).
(2) this bond does not change the scope of the crime of theft in relation to the scope Hmirmh offense, but it throws on the internal Tihumn theft of two forms above, as it radiates the interpretation to give to the phrase "lawfully", mentioned in section 383 (a) (2 ) (the 35 - and).
(3) has to be considered legal property holder even if "earned" the right to illegally sent to hold the property, which under section 10 (a) law mission. Holder to be considered legally the property even if he got possession of it from the sender himself on the basis of false claims, according to which he intends to make a legal action for sent, while his heart made a decision to drive a custom property owners (and 35 - M).
(4) Msnotzra mission under Section 10 (a), will be sent in any case holding the property legally, this section does not distinguish between a situation where the property came into the hands of a third party to the case where the property came to him from the sender. Therefore, given the teaching of Article 10 (a) of the Law shall be deemed to mission, to Section 383 (a) (2) of the Penal Code, legal holder on - even Hmirmh delivered strong underlying (35 M).
Dib. (1) silver is most obvious Hnhlf property, which holds no interest in a particular bill, but when purchasing power (36 in).
(2) the effectiveness of money whose purchasing power requires "Shroto" will be high, and - yes requires that commercial efficiency not get the money burden imposed to check the nature of the right of giving money, and that more had to leave the premise that giving money, holding him, he the owner (in 36 - c).
(3) Civil law distinguishes between a situation where getting free money to do it I understand it, and the situation in which he is subject to its conditions of giving money (36 c - d).
(4) when told that someone holds the money as trustee, did not say that money should not be seen as the owner. If not impossible is that the trustee under the trust acquire ownership of trust assets, then the trust assets are money, ownership of which shall be given to a trustee who holds them (the 36 - and).
Calendar. (1) position of Civil Procedure is incompatible with the nature of the criminal law, divorced from commercial considerations of efficiency, the adoption was the difficulty cities face a criminal conviction of one who holds money between legally and illegally, for another (and 36 - M).
(2) When holding the money was obtained illegally, then no ownership in, derived from the possession, not legal, and - yes is not a defense against theft under section 383 (a) (1) of the Penal Code. However, when strong, and with possession, lawfully obtained, is the holder ownership of money protects against a criminal conviction (36 M).
(3) Therefore the law permanent split between holding money and ownership in it, and thereby created a fiction
הצג סקריפט אנגלי
Cost of money or other property, left by the alleged defendant gives instructions to fill orders, or she goes immediately to his person for money, although according to civil law ownership is by the defendant himself. Fiction has been developed to capture network cases of theft of money or send a hand other assets - employees, agents and various faithful, that otherwise would go exempt, because their actions because the deprivation of property owned by others (36 M - 37 b).
(4) When asking Simon to lend money by Reuben Levy, apply Section 387
Penal Law, which states that ownership of the money Tiohs Levi, getting the loan. Since both eyes of the criminal law, attributing the ownership of money and the recipient of the loan, the loan owned by a separate giving money, the secondary loan based on false claims, convicted in making false claims allegations that Bmirmh give loan (Shimon) theft from the loan is for him (37 d - e).
Hand. (1) When an investor gives the company money on investments - in order that it will invest it for him, holding these funds investment company, trustee (37 M).
(2) the similarity between the nature of trust (where the trustee holds the teaching force creates an asset for the benefit of enjoying the trust or for another purpose) and the description presented in Section 386 of the Penal Code, indicates that the interest of this section holds true Escrow, trust assets and ownership attributes section enjoys (37 M -- 38 a).
Tu. Even if the conditional application of Article 386 of the Penal Code the existence of loyalty, no place to condition the formation loyalty Applicability only three separate physical entities: In creating the trust, the trustee and nodded, which - according to civil law shall not prevent the identity between creating loyalty and nodded. In circumstances where there is identity between creating loyalty and nodded, then delivering the money is also the person to whom the money was received ", as stated in Section 386, and - yes he held for the purpose of criminal law to its owner. Therefore, the fact that a third person before us, and blood nodded blended form creates trust, is not an obstacle to application of Article 386 (38 d - e).
Tz. (1) there is a place to reflect after the sweeping conclusion that the applicability of Section 386 of the Penal Code is limited only to cases where the intention was to give money that will be used in certain bills. This restriction not only inconsistent with the language of Section 386, but she also does not accord with commercial reality does not attaches importance to the notes themselves, and the tendency in modern society do not hold funds but Lhfkidm banking institutions, which can not track specific bills, but another power their buying only (38 and - 39 A).
(2) proof that morality was a matter of money paid those bills will actually use is a sufficient condition to apply Article 386, since this evidence for the existence of loyalty. But there is no room to determine that a necessary condition, that civil law does not condition the existence of loyalty. Property real loyalty but not the specific bills they represent purchasing power (39 a - b).
(3) the fact that investors were indifferent to the question which bills purchased securities not to

Rule created loyalty, and assuming that this is indeed created, the law will apply Article 386 (39 in).
Iz. If the property owner gave his consent to have someone drive a custom property owners, the sector did not exceed certain rights (ie, freedoms and powers) bought a property owner, and created damage to the rights of property owners. This agreement should be given the same meaning in both forms of the crime of theft, under section 383 (a) (1) and Article 383 (a) (2) of the Penal Code, and as flawed agreement as provided in section 383 (c) (1) is not consensus regarding Section 383 (a) (1), so it does not also agree to Section 383 (a) (2) (and 40 - M).
Pcs. (1) (following based 176/74 [16]) when the money is not an absolute obligation to return it actually received money for safekeeping in trust, provided that the sum is returned on time during that time Depositary Authority is appropriate sum of money, and lives only hope or expectation that in time he will have sufficient funds Lhhazrto (41 B - C).
(2) (594/81 based on the following [17]) is on the defendant to show, he had actually kept the amount of money needed to return the amount taken without permission, but enough, if the defendant shows that he intended to return the money, and that had reason to believe he could do so without causing damage or not - convenience to the owner (41 d - e).
(3) (following based 752/90, 775, 1413 [1]) test for the existence of the intention to restore the theft is subjective, with the intention of the software is recoverable value certainty, on - of who takes the view while taking it. Stilmd this intention can complex circumstances, assuming there is no consideration - the subjective opinion of a defendant getting off the explained (42 a - b).
(4) in light of the speculative nature of future transactions, and destroyed their success was not solely dependent on the appellant, can not be said that circumstances of the case with basic assumption was that actually the chances inherent in transactions rather than risk it is realized. The fact that funds were returned to practice certain loans is just wisdom of hindsight is not up and does not lower interest crystallization criminal mind when sending hand these funds (42 c - d).
It. (1) does not say that when you send a hand in loans would be a certainty that appellant would pay the liabilities of the Company which served as CEO by taking new loans. This option depends on the scale was ¬ liabilities that, under conditions that prevail in the economy at the time - it ( 42 d).
(2) was even uncertainty appellant received additional loans the same way he received the previous loans, the power of an offense that was later going to deny he had a previous offense. Recognizing the power of late about the social damage given to correct a previous injury are value for sin Criminal Court, seeking to prevent any damage from that value. Coat as a tort claim will not do, nor would it credible claim of protection. Therefore, the return of the rotten fruits of theft by rotten fruits of another theft is the criminal act Mayen first (the 42 - and).
(3) the assumption that the power of relying method "rolling money" to negate the mental element

Constant theft offense, not rising, seemingly consistent with management practices that determine the way business is rolling funds necessarily indicate criminal intent. But is not the same commercial activity not glue it wrong fundamentally, slid toward the margins of criminal activity is prohibited in the first place (42 & - M).
C.. (1) provider if necessary expand the definition of protected properties in theft offense that will include apartments came to doing his job by the offense or to his employer, as stated in Articles 390 and - 391 of the Penal Code. This broad definition in light of the assets owned by the corporation or employer, as provided in section 383 (c) (3) (44 a).
(2) the possible overlap between theft by employee theft by a manager, it justifies the adoption of broad interpretation of the term "property corporation" (44 a - b).
Ca. (1) The term "strong" appears in different contexts in the Penal Code. There is a strong behavioral component of the offense (such as drug possession N.), there she is the object of the offense, which hit him came from the offense to protect (such as theft on offense), and - Cbmkra Danan - is a powerful circumstances that allows a thief to reach property held on - hands (44 c - d).
(2) control, ie, and the ability to determine the fate of the property, constitutes a central element defining possession. The question is whether the control of a property for the purpose of Section 3833 (a) (2) the law must be exclusive in the sense that the offense of making power to determine the fate of property independently, or was rather limited ability to determine the fate of the property (in 45 - c).
(3) When possession of the property is determined that the conduct prohibited is Bbladioth control conditions. But this interpretation does not fulfill the purpose of theft offense, which is strong circumstantial element, which allows the implementation of sending hand (45 c - d).
(4) the physical object of the theft offense is a complex of other assets, such injury manifested incomplete inevitable, leaving the theft of other complex assets (45 d - e).
(5) The phrase "Sending a hand" should be given a broad interpretation, so that it encompasses any act that brings diminution of assets worth of others, and expressed "strong", sending the previous hand, has sub broad interpretation to include any control that allows the offense does detract from the scope of other assets. Since the focus of crime of theft is the thief leaves the physical space inventory assets of others, the cavity that remains even if the civil law does not recognize the legal validity of the action, and makes the offense or the third party has a duty to fill the void on - by Saturday because that property is limited control over property, referendums joins omission of third parties, may create the space assets of other motor, it Sldrist exclusive control has no place in section 383 (a) (2) of the Penal Code (the 45 - M).
Captain. (1) According to the view that makes it easy, as long as money is not used, not formed a perfect offense of theft, but only experience. However, if the purpose of depositing money into private offense is making profits in the banking system, then use the money merge deposit, must be that because sending a hand (46 a).

(2) can also believes that enough funds to be held mixing factual foundation of sending hand. Theft offense if the focus is diminution of the assets of others, then decrease it forms with the deposit of private funds in his account officer, forget buying credited money excluded from its owner (46 a - b).
(3) there is no criminal responsibility dew prevention Cshaosh clerk not transferred the funds to his own account, but ordered to do so after, and obeyed his orders (46 in).
כג. (1) (following based 752/90, 775, 1413 [1]) consideration of the good bank can not settle with taking money Bmirmh, as you can not talk about reasonable banking considerations, the money was taken through fraud. Examination of discretion on - the measure of bank, accompanied by the bank's money illegally, can not stand all the discussion about the bank reached Bmirmh bank money, because it literally has contradiction in terms (47 in - c).
(2) has to observe the actions of the offense makes a broad perspective, against the overall interests that are against the officer's eyes (47 c - d).
(3) will benefit the company failed to underlie the actions of the appellant. Expected profit from a certain degree of risk which is derived, when between the two exists an inverse relationship. Danan's hard to say about that risk-intensive activities of the appellant serve the good of society (47 d).
(4) touchstone for the existence of intent to benefit the injured party does not benefit objective but the subjective intention of doing the crime. Objective criterion is just north of Cape helped an offense does heart (47 d - e).
Pitcher. (1) deposit money in the bank gives the bank with them, and by depositing funds remains Aovligtorit right to sue the bank receiving the value. Aovligtoriut rights also serve as an object of ownership (such as: N. stock) (48 and - M).
(2) - given under the laws of property ownership rights Haovligtoriut circumstances of the case company, since the bank account opened in her name. Lack of awareness of the company of her rights not appropriated these rights away, the property is stolen (is the right Haovligtorit to the bank) was a wholly owned company. There is no justification to limit the definition of "property" in relation to criminal law scope of property law, so that only assets the victim was aware that ownership will be protected by the theft offense. This reduction does not hold the language of Penal Law and purpose (48 M - 49 a).
So. (1) When is the object of theft of property Corporal, a physical reality, not the existence of a civil obligation to return the property to uncreate the space created due to inventory assets other strong denial. That until the property is returned, injured victim's ability to derive pleasure transferred this property (the 49 - and).
(2) When is the object of theft of property without physical substance, then where's exploits when exposed to the offense does indeed return the number of eligible assets to normal. But until then injured, understand ideas, the property owner's ability to enjoy contractual rights to the creditor at the time (and 49 - M).


Rulings - Dean of the Supreme Court mentioned: in
[1] based on 752/90, 775, 1413 Iron v. State of Israel State of Israel v. Halperin et al, PD Mo (2) .539
[2] based 126/58 Attorney General v. Bana, PD calendar .897
[3] based on 460/79, um, wearing 518/79 v. State of Israel, PD Led (1) .323
[4] based on 152/58 Gurevich v. Attorney General, PD calendar .89
[5] AE 318/82 Javits N. Mediterranean Car Agency Ltd. et al, PD humid (4) .85
[6] AE 422/85 Bank Leumi Le-Israel Ltd. v. Insurance society matter Ltd. et al, PD what (5) .32
[7] AE 84/80, 89 As Kassem N. N. Kassem et al; Zvi Sndrob Co. Ltd. v. N. Kassem et al, PD Les (3) .60
[8] based on 5734/91, 276/92, 317, 318 N. State of Israel, Leumi & Co. Investment Bank Ltd et al; Rubinstein et al v. State of Israel, PD Matt (2) 4.
[9] based on 130/88 Grossman v. State of Israel, PD Meg (4) .599
[10] AE 3829/91 Wallace v. Gat et al, PD marrow (1) .801
[11] based on 134/62 Margalit v. Attorney General, PD Iz .199
[12] based 293/89 m Sokolobki v. State of Israel, PD Mo (3) .92
[13] based on 7024/93 slice v. State of Israel, PD Matt (1) 2.
[14] based on 202/69 State of Israel v. Rosenfeld, PD כג (2) .322
[15] based on 121/88 State of Israel v. Darwish et al, PD what (2) .663
[16] based on 176/74 Judah v. State of Israel Appeal counter, PD Dutt (1) .550
[17] based on 594/81 State of Israel v. Aloni, PD him (2) .57
[18] based on 164/69 State of Israel v. Epstein et al Appeal counter, PD כג (1) .825
[19] based on 223/88 Larry v. State of Israel, PD Meg (3) .11
[20] based on 51/88 Don v. State of Israel, PD what (1) .144
[21] based on 861/79 Mirilsoili v. State of Israel, PD her (4) .163
[22] based on 250/84 Hucstadt v. State of Israel, PD M. (1) .813
[23] based on 1478/91 State of Israel v. Rovbshi et al, PD Moe (1) .829
[24] based on 365/74 Lever v. State of Israel, PD Dutt (2) .824
[25] based on 69/82 Almagor v. State of Israel, PD Les (4) .757
[26] based on 515/75 Katz v. State of Israel, PD and (3) .673


Rulings - English law mentioned: and
. (. c. A). 316All e. R 2 [1994] (. 2no) r. V. Clowes [27]
. (. p. C). 303Cr. App. Rep. 86 (1988) sin v. Regina-chan man [28]

Appeals the ruling - Dino District Court of Tel - Aviv - Jaffa (Judge S. Berman) 562/91 dated 10.10.93 cooperation. 6350/93 received oral appeal. The appeal was rejected primarily oral 6391/93.
A Robink, Senior Deputy District Attorney offenses Taxation and Economics, E. Ehrlich - named undermines oral 6350/93 (respondent oral 6391/93);
Y. Drori, M. Rubinstein - oral 6350/93 named respondent (appellant oral 6391/93)

Stopped - Dean
Justice A. Goldberg: N. Prologue
.1 Arie Goldin (hereinafter - Goldin), oral 6391/93 appellant, was convicted, seven charges filed against him, the following offenses: on receiving anything Bmirmh aggravated --
An offense under section 415 of the Penal Law, 1977; theft by a manager - an offense under section 392 of the Penal Code; theft by unauthorized - an offense under section 393 of the Penal Code; false registration of corporate documents - an offense under section 423 of the Penal Code; fake documents - to get anything in aggravated circumstances - a crime under section 418 of the Penal Code; use false document - an offense under section 420 of the Penal Code. The court sentenced to imprisonment of nine years and a half, some six and a half years' imprisonment and three years in prison - about - terms, and a monetary fine in 000, 150 S. report. Goldin's appeal turned on the part of wickedness (as specified in section 44 below) and the severity of punishment.
State, undermines oral 6350/93, achieves the lightness of the punishment brothels Goldin.
2 company at Israel Ltd. (hereinafter - the concern) is built from three divisions: Building Division and headed by a general construction company; industries division, led by Clal Industries Company, a division _________________ *

Note system: N. ruling certain parts omitted. Markings -------
And -....... Indicate the places where omission was made.
הצג סקריפט אנגלי
Trade, led by general trade company. Any company specialized concern was bus activity, Csshitof operation between the companies was reflected mainly by a company with free capital available to put it another company in that division who needed him, and that interest rates lower than conventional credit market. Regimental funding framework which use spare capital surplus - that, and demand him - that, called "inner Hmslka. Get the "inner side", the scope of activities was limited regimental frame, acted "external clearing house", which routed the excess supply and excess demand of capital from the "Get him inside.
Company at Ainoosmnt (hereinafter - Cih), Goldin served as a director, the previous incarnation was called Shirson company - at all. Until the year 1985 was Shirson - all company owned jointly by all trade (who was, as noted, head of trading concern), and an American company named Shirson. due to a marked decrease in the scope of its activities and if profitability of the company, sold company Shirson, in 1985, the shares Shirson - all at company trade company. MS C belongs also conglomerate. Consequently Shirson company changed - rule name to -. Cih Given the economic crisis which the company finds itself, considered the possibility of marriageable age, but finally decided to try and sycamore. Goldin found suitable for this task and on 1.1.86, he was appointed CEO of the company, a position carrying until .3.9.90
.3 Under the baton of Goldin Cih specialized in managing investment portfolios in foreign currency for local and foreign investors. On - received special permission from Bank of Israel, the company mainly specialized in consulting and implementation of spot and future transactions between importers and exporters Ovitooc foreign currency transactions. As a company specializing in investment money of others, did not need Cih during regular business loans. Usual about her business also gave loans and brokered a deal between borrowers and potential lenders. This field of activity devoted to other companies concern, such as the leasing company at all (p. 1256 Protocol). If that "there were several exceptions, most individual, loan deals of foreign bodies, Csbtooc by calling back to back back to back position but it Cih company in a controlled manner with the approval of the Executive through the work that has not undergone the - 1 / 4 or - 1 / 2 percent .. . (P. 6 verdict).
.4 Controlling the activities of Cih was given by three factors: on the company's CEO (he Goldin), the Council of Reference directors, eight from among the board members - to "simplify the relationship between the CEO and the board ... as a kind of intermediate level between the CEO and board "(p. 3 verdict.) board, which met five times during the year, a deal setting the general policy of Cih developing new business initiatives. The budget devoted its meetings to determine the periodic reports and approval. On board - Cih-like boards of other companies operating concern - did not pretend to be a control mechanism at the ongoing activities of the CEO, is very doubtful whether such control was possible given the limited in number of meetings
Council. Reference is, as noted, serve as an arm coordinator between the company's board and CEO. Duties and powers of Reference not set in advance or raised in writing. In the absence of a clear framework for the role of Reference, shaped the actions of those who used to post the actual nature of the job. practice was the involvement of Reference of the Company's current activities, with little contribution consisted mainly of Reference "in formulating initiatives, setting credit lines and consultant in exceptional cases" (p. 3 verdict and p. 1171 Protocol). Reference Goldin Mr. Gershon served first patron, and later manned role the - by Mr. Mordechai Erel.
Arising from the above, that Goldin was in a hierarchical subject to the board Reference, but this sit-ups usually come only when asked expressed a decision regarding the design of the company's general policy, or actions taken exceptional Goldin asked. Current affairs of the company enjoys great independence Goldin, though not absolute, since - according to internal practices formulated expressed concern external documents to open bank account, were conditional instructions Cih bank funds the existence of two signatures of the authorized signature, and: and a board member and CEO. on - the practice that crystallized on - Cih Goldin used to sign first, followed by signed Reference (p. 11 verdict).
This is the place to note that Goldin's professional skills were full assessment among community business people. The bar is considered an authority in the economic field and as a star through the "sky meteoric financial community, consulted, were polite to him, were captivated by his tenders education" (p. 15 verdict).
.5 Before turning to examine whether law Goldin was convicted of seven charges, we will brief on background actions. Goldin admitted in the final analysis the district court addressed a number of investors "conservative" and suggested they spend their money on - Cih for high yield than that proposed in the banking system. Goldin admitted that "even until hic administration did not approve yields exceeding those of the banking system, as experience has shown that over time will yield investment funds futures transactions in foreign currency returns" soaring ". On - yes he made the decision that "will make decisions alone, and responsibility (single signature) or to present information to management so he gets partial approval for a partial return" (p. 42 sum District Court). About - to accomplish his plan network weaving companies and bank accounts, as described below: N. Gur Ben-Ari, a friend of Goldin, who worked a Swiss company which dealt among other things, the establishment of Panamanian companies, established for two Panamanian companies, one founded on - 25.10.85 named corporation Spencer Holding (hereinafter - Spencer), and the second was founded on - 23.9.86 named Letra trading corporation (hereinafter - Terray). Ownership in these companies was given Goldin, shares, allocated bearer shares, were held on - hands in the bank UB S
Switzerland (Z / 24, p. 39). Theory, was given control of these companies moved Ben-Ari and two colleagues, the basic documents registered as members of the Board. But as the court Kamma, Goldin is not part of it, was the appointment of directors, but the exclusive means of camouflage control (Goldin's) society (p. 67 verdict).
On 4.12.85 opened a bank account in the name of Spencer bank. U. B. S Switzerland, when the - according to Swiss banking laws registered owner, ie, in Goldin, Beneficiary (p. 65
The verdict, p. 988, 981 protocol). Gore opened on 22.1.87 Ben-Ari --
Goldin's request in his presence - an account in the name of Terray branch of Bank Hapoalim (A / 3 / 44). On - according to the account opening documents and each was allowed to charge the company directors, was Cshorat billing can be made by telephone (Z / 6 / 44). In practice, the bank would honor the provisions of Goldin, although it was not authorized signature account.
Gore called on 21.1.87 named Ari Ben Spencer with Cih agreement which will last for future transactions Spencer Company. It was also agreed that the provisions for telephone transactions can only be granted on - by any one of the directors, that Goldin will be proxy - the power to carry on - under consideration - Forward transactions mind for Spencer (A / 14/58). To expose Goldin's exploits was Cih awake to the fact that he is standing firm behind Spencer.
During 1987 the shares acquired Goldin of a Dutch company named Como, thereby acquired control of the bank expense. . u. B. S additional accounts available to foreign banks were also Goldin account name and account name Nagu, Noga managed Warburg bank in Switzerland, report on the name: and finance sa panama Bolfart Bank u. .. B. S Goldin also opened without the knowledge of Cih bank account in her name at the branch "garden city" of Bank Leumi. This account told investors wishing to invest in - Cih deposit their money. Goldin also admitted that they were using forged passports in his possession a bank account opened in the name of Mas'ud Rahmani, another account in the name of Jacob Alauf. Goldin, who contented himself with opening bank accounts in question, turned to Mr. Ephraim Susannah, one of his cronies, and asked his help in recruiting "straw accounts" for customers who want to invest their money in - Cih anonymously. Mr. Ephraim and Susanna, with Mr. Rabbi, Israel Discount Bank branch manager in the hope, provided Goldin his way. With bank accounts provided were Goldin's bank account in the name of Robert Cohen bank accounts in the name of Edmund Dallal. Kama noted that the court decision - that the activity in "Dino various press" was conducted as follows: N.
"The defendant was given his hands (of the contact - a 'c') with a note written in the amount of cash he wanted to. He (Susanna) was turn up with a note to Shaharabani, receiving nominal amount transferred to the defendant, unless he had instructed
Deposit of money that some consider the defendant stated "(p. 31 verdict).
First introduced only Mr. Susanna secret things, but over time also were added to Mr. Elisha Shachamon Mr. Ido Menachem, Goldin's friends.
.6 Dated 3.9.90, ie ten days after his exploits were discovered, Goldin's disappeared. First hiding in, and then escaped to England using a false passport was in his possession. At a time when he hid not froze on Mario Goldin. Ms. Tamar Kovarsky, analyzes and manages systems and computer company, recently testified that "the defendant helped generate reports from home and at the request of the defendant released 'outputs of the accounts that the defendant claimed to be the same concentrated" (p. 28 of the Protocol). San " J Boaz Yifat testified that "home computer Stfsohu search was performed, before his capture, delete, and performance oriented" (my emphasis - a 'C'; p. 38 of the Protocol). Proved more Goldin turned Elisha Shachamon comforting Ido asked them that if people call them declare to them all that they have found that the amount of money borrowed from -. Cih that asked researchers to throw sand in the fate of deposits (described below). Meeting that existed between him and Elisha Shachamon comforting Ido last agreed were asked to state in writing, provided they give a counter-statement that L"c rule "cause of action against them (A / 50 A / 52).
After we presented the general background Goldin's actions turned to examine the fundamental conviction seven charges.

The first charge
.7 Goldin signed on 25.1.87, without joining another authorized signature signing, a document directed chemical fiber company in Israel (hereafter - Fiber Company) is among the industries division concern, with the name of Cih confirmed that it received 000,650 loan amount fiber, 1 NIS , Sfiraona, plus annual interest rate of 9.5%, on 25.4.88 (A / 1 / 58). The loan repayment date was extended periodically until 25.4.90 (A / 6 / 58, A / 7 / 58, A / 8 / 58). Agreements also extend the repayment date is Goldin's signature only.
The loan amount 000,650, 1 NIS deposited bio fiber company's expense Cih 25.1.87 (A / 3 / 58). However, this deposit is not charged in the books of a company credit Cih fiber but because of Spencer Company (A / 35/58 A). Library fiber company's commitment Cih recorded her (A / 9 / 58).
On 24.4.88 submitted to - Cih document called Spencer company, which is a signature Hnhzit Gore's signature Ben-Ari, who, remember, one of the directors at Spencer, which was asked Cih to 196, 585 shekels from the account of Spencer Fiber Company (A / 28/58 ). on
This letter was basic amount of the expense account of Spencer Fiber Company (A / 42/58 A, A / 5 / 58). Alongside the transfer amount the account of company fiber fiber company Goldin sent a letter, which informs Cih fiber company that gave her credit 169, 585 shekels, which are interest payments (A / 4 / 58).
On 25.4.90 which was, remember, the date of repayment of the loan given fiber company, transferred the account of company fibers 335,719, 2 shekels, they balance principal and interest. This amount lasted four private payments from his account of Mr. Elisha Shachamon, a friend of Goldin (Z / 41 / 41,42,43,44). from the standpoint of fiber company that was over the loan issue, because she was paid the full principal and interest as agreed upon. more should be noted that near the transfer amount from his account of Mr. Shachamon, deposited in his account of Mr. Shachamon same amount of money from account Cih bank branch "garden city." proximity between the time deposit amount at the expense of the Company at the date of deposit of fiber amount in his account of Mr. Shachamon identity and amount of the deposit indicate that fiber company repaid the loan funds. Cih turned away to examine the activity recorded in the account of Spencer Company. as no dispute that 000,650, 1 NIS who were supposed to win Lhizkf fiber company recorded winning records of Cih Spencer Company. Between 13.3.87-3.11.87 Spencer turned to - please move Cih Terray account a total of 000,645, 1 NIS (A / 35/58 A). Based on these requests, signed Hnhzit Gore's signature Ben-Ari (A / 21 / 58, A / 23/58, A / 25/58), teachers and bank documents were prepared to transfer the amounts specified in the account of Terray. These documents were signed on - Goldin and licensed by another signature (A / 17/58, A / 18 / 58, A / 19/58, A / 2058, A / 22/58, A / 24/58), and basically was, as stated, a total of 000,645, 1 NIS account of Terray.
9.11.87 deposited on account of firm Spencer 618,650, 1 NIS. Deposit that preceded Goldin's request to the company at trade (the parent company of Cih), get a loan amount 000,000, $ 1 to h - Cih you lend this amount to one of her clients, she Company Spencer. Company generally accepted trade request (A / 18/58). amount in dollars, equivalent to ¬ 618,650, 1 NIS, was deposited first thought of, Cih then transferred to the account of Spencer in -, Cih Csvsfri Cih obligation is recorded in Spencer. This deposit was used to pay interest on 25.4.88 fiber company in 196, 585 shekels, which stood above. Also, 000 were on 16.2.88, 950 NIS Spencer's expense account of company Terray. Two of these transfers, Hmstcmot at -196,535, NIS 1, were based on transfer instructions given. Cih these provisions were signed on - Goldin and licensed by another signature (A / 26/58, A / 28/58). Preceded by requests for instructions in writing referred to - Cih named Spencer Company, signed Hnhzit Gore's signature Ben-Ari (A / 27/58, A / 29/58). we add should be noted that there is no dispute that on 7.11.88 Pharaoh Spencer the loan taken from -. Cih
Dates and 4.11.88 - 7.11.88 deposited in the account of Spencer 000,090, 1 NIS, originating a loan received by Goldin brothers collapsed (the indictment refers to the fourth). Deposit is used, inter alia, for repayment of the loan taken from Spencer - who gave her financial Cih company at trade (A / 30/58). on 27.1.89 were 535, 285 shekels from Spencer's account Mas'ud Rahman started - by Goldin using a fake passport Percy was in his possession (Z / 31).
For these acts charged in the amended indictment Goldin getting anything Bmirmh aggravated, theft by a manager, theft by unauthorized thirty-two offenses of false registration of corporate documents. -------------------------------------------------- ------------------¬
All in all: Goldin was convicted on all offenses listed first charge.

The second charge
.12 In early 1987 Goldin was negotiating with the CEO of Elektra 000,250 loan amount, NIS 1 to accompany Electra -. Cih negotiations bore fruit, the date 21.8.87
Electra has received over a document, bearing the signature of another signature Goldin's signature Hnhzit Mr. Steingrt, sit - head board (A / 1 / 57), which undertook to repay the loan Cih with linkage differentials and interest. The interest rate was higher classes in general accepted the credit market, and - Cih particular. The loan repayment date was extended from time to time, and - 28.1.91 Cih was supposed to repay the loan (A / 5/4/3/57). Accordance with orders of trial Electra deposited the said amount at the expense of the company Terray (A / 2 / 57), and the document bore a signature Hnhzit Steingrt's signature. Receiving the loan which was not brought to the attention of relevant bodies in -, Cih not recorded in the library. Browse pages Terray's bank account shows Schods days after the deposit of the loan account of Terray expense Goldin drew approximately -000, 900 NIS.

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Goldin was convicted of second charge in making something Bmirmh aggravated circumstances; forgery for purpose document which aggravated circumstances; using false document; false registration of corporate documents; theft by a manager; theft by unauthorized.

The third charge
.15 On 5.5.88 was held and an agreement between Cih Alauf company, which pledged last
הצג סקריפט אנגלי
To lend to - Cih On 8.6.88 the sum of 000,600, 1 NIS (Z / 10). It was agreed that the loan Cih wild on 8.12.89 with linkage differentials and interest (at a rate higher than conventional credit market.) Agreement was signed on - and the company Alauf - by Goldin, forged the signature of Mr. Erel. Alauf company since conditioned the loan guarantees, devising appropriate, Goldin forged document (A / 10/59) where Ha Company undertook to guarantee the trade at the loan amount, with interest rates higher than the conventional market, and that Alauf social message. This system documents, given the company Alauf, not brought to the attention of the relevant company, not recorded Cih library to high interest rates promised Alauf Company in this Agreement will arouse suspicion. This also stemmed from "the need" Goldin create a system of parallel documents, which appeared accepted credit terms, which constituted the basis to open a portfolio company Alauf on -. Cih Goldin deposit agreement forged between the company and Alauf, hic where the last confirmed receipt of deposit equal to the amount specified in the agreement of the loan period, when the difference between the deposit agreement was brought to the attention of Cih real loan agreement consists of the high interest rate "consensual" (A / 4 / 59). on the basis of this deposit agreement (which appears in the conventional market interest rates) given at trade company wrote - a guarantee deposit amount referred Alauf company (A / 6 / 59). deposit agreement that is registered in the library of . Cih as agreed, the clerk's expense Alauf company Cih000, 600, 1 NIS on 9.6.88
(A / 14/59).
.16 Goldin opened on 20.2.89 with Percy was in his possession a passport (Z / 16) Discount bank account in the name of Jacob Alauf (Z / / 15 B). Testimony of Ms. Shimoni, dealt with the opening of this account, that Goldin made a point of account opening form is recorded in parentheses the name "Alauf (Jeff) '(so!), Identical to the name of the company Alauf (Z / / 15 A).
On 16.3.89, which has not yet reached the date of repayment of the loan company Alauf, Goldin made, not on its company Alauf, document teacher Alauf company bank return the deposit of the amount of expense. Cih document specified bank account number opened in the name of Jacob Goldin Alauf company's expense Alauf, and signed in accordance with internal procedures, Cih on - by Goldin and - by Mr. Mordechai Erel, Goldin Reference used in this period (N / 2). Same day were 000,808, 1 NIS account name Alauf Jacob, which was just another cloak himself Goldin (A / 17 C).
To complete the picture should be noted that the next day 8.12.90, is the day the loan repayment Alauf company, recently paid depending on demand (N / 67 B) 328,484, 2 shekels from the Bank of Cih branch "Garden City", and that speech will be expanded later.
.17 Goldin was convicted on the basis of admission using a fake document and recording false corporate documents. Also admitted forging documents to get anything on purpose, but the existence of circumstances Village
Aggravating an offense. Kama Court found that stringent circumstances exist, thus making anything Bmirmh convicted aggravated forgery for purpose document which aggravated circumstances. Goldin also convicted of stealing by theft by a licensed driver. Explanation for these convictions was made - by the court Kama After describing the facts of the fourth charge, the identical pattern to those offenses that charge.

The fourth indictment
.18 Center of the fourth charge deposit amount is 000,200, NIS 3 deposited at the expense of the brothers collapsed. Cih held on 15.6.88 document, agreement between predicted and Cih Brothers collapsed, with a pledged deposit account of recent Cih000, 200, 3 shekels on - so that it will acquire them bonds that amount. It was agreed that on 31.10.89 the wild Cih duty, plus linkage differentials and interest, a rate higher than was common at the time the credit market (A / 9). This agreement signed Goldin, forged the signature of Mr. Mordechai Erel. Edit next to the date the deposit agreement Goldin forged document which included trading company undertook to guarantee the deposit agreement, and handed over to the brothers collapsed (A / 2 / 56). It goes without saying that the documents that, given the brothers collapsed, not brought to the attention of relevant factors in - Cih not recorded in the library; and stood on the reason, it collects the agreed interest rate was increased to arouse suspicion. Parallel system that forged documents Goldin additional documents system, which served as the basis to open an account in the name of the brothers collapsed in -, Cih that "agreed" to lend Brothers collapsed - Cih sum of 000,200, NIS 3 for the conventional interest rate credit market. It was agreed, apparently, that the brothers collapsed will be entitled to sue any time the loan's early Firaona (A / 10/56). company at trade fake loan guarantee agreement (A / 12/56). false loan agreement and wrote the guarantee of a company registered in the library. Cih as agreed, the clerk Brothers collapsed on 1.7.88 Cih's bank account the sum of 000,200, NIS 3 (A / 3 / 56, A / 4 / 50, A / 5 / 56).
.19 On 5.10.88 ordered Goldin Rafi Cohen, the company treasurer, to prepare a document teacher Cih bank transfer fee of 000,000, 2 NIS account of Edmund Dellal, and on the basis of a letter (not submitted as evidence) by the brothers collapsed, when asked, seemingly, to exercise their right early repayment of the loan. on the basis of the transfer order, signed on - by Goldin and Mr. Erel, transferred amount Edmund's account Dellal (Z / 14). Following the payment in question was reduced balance standing credit of books Cih Brothers collapsed and was put on 000, 850 dollars, respectively Arboth also reduced the scope of the company at Sir (A / 13/56). Browse the pages of the bank account of Edmund Dellal shows that the next day was the sum of 000,900, 1 NIS account of Edmund Dellal account of Terray (A / 4/42-7 ), and the balance amount in cash Goldin (A / 8/42-11).

Privately Due Date deposit arrived Brothers collapsed. On - according to Goldin's report, was the deposit amount, together with profits allegedly accrued, the total 571,317, 4 NIS. The face of this high yield Brothers collapsed sought to extend for another year the repayment date of deposit. Goldin then forged a new agreement, the same precondition (A / 7 / 56), written guarantee of any company trading on the new loan amount (A / 8 / 56), Umsrm to the brothers collapsed. These documents were not, of course, the attention of relevant bodies in -, Cih and have no memory of the company's books . Instead Cih that recorded in the books balance of the loan repayment date was extended six months (A / 14/57).
.20 Goldin was convicted of the fourth charge, based on his confession in court, used a false document and recording false corporate documents. Also getting anything Bmirmh admitted forging the document - to get through it all, but this village last of these offenses aggravated. Kama Court found that stringent circumstances exist, thus making convicted Golin thing Bmirmh aggravated forgery of a document - anything to get specials. Goldin also convicted of theft by unauthorized theft by a manager.

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The fifth indictment
.22 On 5.12.89 Goldin opened a bank account in the name of Cih Garden City branch of Bank Leumi. Account was opened on the basis of a decision, Hnhzit board's decision, Cih dated 27.11.89, which was approved opening the account at Bank Leumi. Determined that the joint signatures of two of the names listed in the decision (among them: and Gad Hitron, Amos Sapir, Yitzhak Shrem, Mordechai Erel, Mordechai Glick and Arie Goldin - a 'C') will require the company continued to independently scale (A / 1), whereas When it comes to pulling a low amount (000, 5 dollars), can come to the signature of Nathan Lurie, thought the company, instead of signing a signature heritage. Around the time that board members signed the account opening forms, assuming that the opening bank account information is just an ordinary course of business routine. Goldin confessed, was not aware Cih for opening of account activity there.
The account opening forms lacked signatures of the accountant, Nathan Lurie, signature of the Memorandum of the company, but this did not prevent the opening of the account, according to Ms. Oren, director of commercial department of the bank, "for such customers, not strictly formal Hkfdot of missing signatures. .. " (P. 136). Between the account opening documents are not provisions telephone authorization form, hence the vendor Kama Court noted "if such a form, or perhaps forgotten (Mrs. Oren - A C) give it to the defendant in fact was not invented such permission" (p.
136). Either way the bank would honor the orders Goldin's phone. At this point, because opening the account in the name, Cih practice was unique in a given control by Goldin, allowed him to control their money of investors who thought Thomas that they invest their money into account the standards. Cih .23 Here we will only sample Goldin's actions into account the above, available basis of charges that, needless to review all the action from dozens of actions were carried out of the question, as they are reflected in the pages of the account (A / 1 / 53, A / 2 / 53). The sum of all deposits stood at 716,789, 16 NIS sum total of withdrawals was 582,781, 11 shekels; on 23.8.90, is the day of exposure Goldin's actions, the account balance stood at about -995,231, 5 shekels (Z / 6 / 53).
Goldin had negotiated with six investors, transmission offered each of them to deposit money in - Cih bring down a fine writing - a guarantee of the company trade at all. The proposal appealed to investors. Against this background, held a loan agreement, Goldin admitted forgery, with the Elite company (A / 4 A), and deposit agreements were, no Bzivfm Goldin admitted with Wadie Haddad (A / 1 / 54), Brothers collapsed (Z / 5), Elijah Maccabi collapsed (A / 6), and Dan (A / 7 A / 8). Everyone gave investors Goldin wrote - a phony bond trading company at all. It goes without saying that the agreement deposit loan agreements were not brought to the attention of those involved in - Cih not registered in the library.
On the basis of these agreements was deposited in the bank in question a total of approximately -000,700,11
NIS, internal fission was as follows: B - 7.12.89 Elite company clerk 000,000,2
NIS; on 26.3.90 clerk Wadie Haddad 000,400, 1 NIS; on 27.3.90 Dan 000,000 company clerk, 2 shekels; on 19.6.90 official Maccabi collapsed Eliyahu 000, 300 NIS; on 15.7.90 deposited Brothers collapsed 000,000, 4 h report the date 13.8.90 Dan 000,000 company clerk, 2 shekels.
Top of the required scholarly judge noted that two days after opening the account deposited two checks in the amount of 000, 990 shekels from his account of Robert Cohen, who, as noted, one of Goldin press accounts. On this account was added that --
"Two significant deposits as the assembler Rmigolsky Total 000, 500 NIS and deposit A"s 000, 500 shekels from .10.1.90 also has a deposit of $ 000, 80 NIS from 19.4.90 Christine Samuel" (which extended speech in the indictment VI - A C).
.24 So far we were the source of major deposits in the account, thus turned to examine the main purpose of withdrawals from the account. The fifth charge was attached list, which numbers 39

Instructions to transfer funds with various parties (Sventintn admitted Goldin), whose overall value is 873,385, NIS 6 (Appendix B indictment), and the names listed in it were Elisha Shachamon, Ido Menachem, Morag Nuriel accountant Daniel Schmidt, who provided personal services Goldin. This list does not pretend to exhaust all payment instructions given by Goldin. In addition they also used the funds deposited fiber outstanding loan company, carrying the first indictment, the loan repayment Lalauf, carrying the second indictment. This matter should be noted that the prosecution stated in court briefs that Kama She does not see that "Practice theft payments by customers Cih client compatible documents issued defendant, when she saw herself committed Cih according to documents" (p. 232 summary prosecution in court Kamma). This charge context scholarly judge said that does not see all that the funds were used Rbota outstanding commitments undertaken Goldin's name, Cih since it is returning "theft by stealing one another.
.25 Goldin was convicted based on false confession registration of corporate documents and using a false document. Also admitted receiving a document forgery which Bmirmh deliberately get nothing but a village that offenses committed in aggravating circumstances. Scholarly judge did not accept this claim ...

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.26 Judge also convicted the scholarly Goldin fifth charge of stealing by theft by a licensed driver. It's the - no claim of the island - the power of Goldin scholars that there is no convict him of theft by unauthorized, when no one's failure to use Section 383 of the Penal Code does not exist our case. This argument was rejected - by the court Kama ...

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The fifth charge .28 Goldin was convicted of six offenses receive nothing Bmirmh; eight - ten offenses of forgery for purpose document which aggravated circumstances; six offenses of using a false document; six - ten beers of false registration of corporate documents; thirty-nine offenses of theft and theft by a director by authorized.

Sixth charge
.29 Focus their investments are sixth indictment of seven foreign investors, and - according to agreements between Cih conducted last was supposed to run for each portfolio. Also signed by each of the investors of attorney - power authorizing the Goldin perform the steps necessary for him to manage the investment portfolio. Conducted in accordance with the agreements, were deposited in her account of Cih000, 415, $ 3, 000,400, 1 French francs and -000,300,4

Swiss francs (Mrs. Samuel, one of the investors, the clerk in accordance with the teachings of Goldin additional sum of 000, 80 NIS at the expense of Cih branch "Garden City" (A / 1 / 53), but this deposit was not included in the indictment VI).
On the basis of transfer orders issued during the period between 14.6.88-15.2.90 were 000,089, 3 dollars above the total deposits anonymous accounts in Switzerland (on this matter see Appendix C indictment). Instructions were prepared on the basis of Goldin's statements to employees Cih these investors sought a refund of their investment, signed - by Goldin and Mr. Erel. Scholarly judge explicitly stated that the sum of 980, 240 dollars "he made his way through Arzi bank to the defendant's personal account in the name of Spencer in Ubs" (p. 158). On balance the judge merely scholarly general statement that she "doubt many funds were in his pocket" (p. 167).

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The amounts transferred funds were reduced investors gain recorded in the books, but the investors themselves Cih Goldin gave reports which did not mention the fact that attracted funds in their account, and instead included them false details about the return bearing deposit.
.30 Goldin acknowledged reports of foreign investors gave false details, but the adhesive transfer of funds Mfikdonotihm version made in consultation with them. The need for issuing false reports and false despite recipients ads which Goldin explained that these reports, which contained false data about yields pleasures gave rise to deposits, are designed to increase the demand of potential investors who ran the investment system, because the business behavior of foreign investors, by Goldin called "market makers", served as a role model among other investors. The increase in demand for investment system who was supposed to allow him to return the promised yield in C reports Hkozbim. Hence his claim that investors would receive a report purported to reflect the return on their investment yielded. Yes, embodied in its return, they will be entitled to if the system will be worth double the expectations it, hope prophecy inherent in these reports come true, were also partners of foreign investors themselves.
.31 Bone of contention in court was Kamma If foreign investors were made aware to use Goldin Bfikdonm. This matter testified two of the seven foreign investors: Ms. Christine Samuel and Mr. Yuval leek, was one of the company's Panamanian "Rameling.
Ms. Christine Samuel testified that she herself did not give orders to transfer funds, since
"It is inconceivable that she turn to silver, which brought to Switzerland from France, and after a few days after his investment in Israel" (p. 159). Goldin is not a part that you order to transfer the funds at the expense of Ms. Samuel did not get out. He claims that her husband, Sergeant Samuel or son, Rafi Samuel, who ran for her account was not invited to testify before the court Kama, who gave this instruction. This argument did not win confidence of the court Kamma, which stated:
"Here the defendant did not flinch Mllachzb brazenly claimed that meetings about this account, after setting up, never ran with Christine, but with her son Samuel (who of course did not testify!)" (P. 160).
More scholarly judge noted that when asked why Goldin gave Ms. Christine Samuel false report, when sharing is not "designer market" and that her behavior is not a business model, he replied that "Christine Samuel had not brought any client so there is no point in answering this question (p. 4157) "(p. 161). A similar picture about the lack of awareness of attracting investor funds, emerged in court testimony of the Kama Mr. Yuval leek.
This is the place to note that Mr. Rolf Fischer, director of the company Rameling "Mr. Yigal Fisher, Yuval leek's partner, did not testify at trial. But Maimerto Yigal Fisher, who filed the case because the agreement as evidence for reasons of health prevented him testify in court (N / 56, p. 2186), indicate that he was unaware of the transfer of money deposited in - Cih bank account in Switzerland.

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Goldin was convicted .35 Therefore sixth charge, seven - ten offenses of theft by theft by a licensed driver, and seven - ten offenses of false registration of corporate documents, using forged document forging documents to get through anything deliberately aggravated.

VII charges
.36 Point of this indictment of Joseph Vaskotihm Segev and company I.m.s. Ltd. which is owned by Mrs. ownership wife, Meira Segev. On Mr. Segev 5.6.89 Open on investment portfolio - the name of the company Cih I.m.s. Investments Ltd. (hereinafter - the Company I.m.s.) (A / 1 / 67), on 28.11.89 opened a file similar to the name (Z / 4 / 67). At the same time to open these portfolios gave Mr. Segev behalf I.m.s. Company Permission to perform
On the basis of telephone instructions (A / 2 / 67, A / 5 / 67). You can also Goldin attorney - power to perform actions associated with managing portfolios without seeking the approval of Mr. Segev early or company I.m.s., except withdrawal or transfer money from one account (A / 3 / 67, A / 6 / 67) .
Period between 7.6.89-26.4.90 I.m.s. company clerk Her account of Cih total of 164,569, 3 shekels, the sum of 000, 800 NIS deposited teaching Goldin's bank account Cih branch "Garden City", h - Cih did not, as stated, the existence. Deposits in question - except for the deposit of 000, 800 NIS account "Garden City" - were recorded in the books of a company credit Cih I.m.s. Mr. Segev. For deposit in the amount of 000, 800 NIS I.m.s. company invented Goldin OK false witness of approval, on receiving the amount Cih (A / 9 / 67).
.37 Teaching Goldin, without the knowledge or Mr. Segev I.m.s. company, were prepared during the period 20.6.89-20.10.89 Cih documents which the bank sought to four bank checks totaling 000, 900 NIS (Z / / 11 A, B, M, H). One of the instructions was signed - by the only one authorized signature, Mr. Erel (Z / / 11 A); otherwise issuing cashier's check of 000, 300 NIS was signed - by Goldin and Mr. Nathan Lurie, Treasurer company ( Z / / 11 H); and two other orders signed on - by two of the company's signature heritage. On the basis of these provisions made four bank bank checks. Two Sskomn total was 000,400, recorded I.m.s. Company Ordinance, the two remaining, Sskomn amounted to -000, 500 shekels, were payable to Mr. Segev (A / 4/79-1). Goldin, received the four bank checks, forged signatures bearing on their backs. cashier's check for 000, 300 NIS was assigned the account of Ms. Frida Goldin Goldin's mother. On 14.7.89 were 000, 160 NIS at the expense of Ms. Frida Goldin account of Mr. Victor Abulafia, one of her clients of Cih (N / 81 D). Trace of 000, 140 NIS (are the difference between 000, 300 NIS deposited at its expense of Ms. Frida Goldin and 000, 160 shekels were transferred at the expense of Mr. Abulafia) no engine. According to other checks Nfdo Goldin transferred accounts "parallel system" (p. 4111 Protocol). Kama Court ruled Goldin use the funds to "targets" (p. 152 verdict).
Moreover, dates and 30.11.89 - 4.12.89 Goldin ordered officials, not the opinion Cih Mr. Segev or company I.m.s., prepare teachers and bank documents to transfer a total of 000,980, 1 NIS account of Mr. Robert Cohen. On the basis of documents These signed - by the signatory Goldin added, amount transferred to this account (A / / 11 C, A / / 11 D).
Cih .38 library reduced the balance standing to win Mr. Segev company I.m.s. Amounts transferred, apparently, to Mr. Segev company I.m.s. Bank checks by the amount transferred to account of Robert Cohen. Because these transfers were not the opinion Mr. Segev
I.m.s. company, falsified reports Goldin, Hnhzim reports, Cih omitted them something pulling funds accounts, and instead made false details about the return yielded Fikdonotihm (Z / 51).
To complete the picture should be noted that on 13.3.90 were Mr. Segev's account at the request 000,200, 1 NIS, with -000, 850 shekels were transferred to her account of Cih standard (A / / 11 E, Z / / 11 and '), while the balance Huabh Calculator Branch "Garden City" (A / 59/39). Msnior suspicion Goldin reached Mr. Segev deposited funds and the I.m.s., Goldin quick return 000,850, $ 1, which pulled the account of company in Como -. u. B. S .39 Goldin was convicted on his confession in court Kama use false document and recording false corporate documents. Also admitted receiving 000, 800 NIS Bmirmh deliberately forging a document to which Bmirmh, but Village specials which were offenses.

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.41 To sum up: Goldin was convicted of obtaining the seventh charge anything Bmirmh aggravated; four offenses of forgery for purpose document which aggravated circumstances; use false document; seven offenses of false registration of corporate documents; six offenses of theft by a director of six offenses of theft by unauthorized .

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.44 Goldin's appeal, as he touches verdict, turned on all convicted of offenses in which the first charge, while for the remaining six charges, appellant is only theft conviction offenses.
.45 The first claim of the island - the power to touch the scholars of Goldin proper delimitation of offenses against property. By argument, no physical action one can grow at the same time crime of theft and fraud offense, as there is no power to produce two independent offenses of theft. Therefore there was no room to convict Goldin are getting nothing Bmirmh and theft, as there was room for both convicted of theft and theft by authorized by the Director.
.46 Section 383 of the Penal Code establishes the foundations of the theft, according to which:

"(A) a person steals something if he --
(1) takes and carries it can be stolen without the consent of the husband, fraudulently and without
Right to claim in good faith, meaning when taking it to revoke the permanent deprivation of ownership thing (2) be held legally nothing can be stolen, escrow, or partially owned, he reaches in his or fraudulent use of other than a thing.

...
(C) For the purposes of theft --
(1) Gentile - including obtaining possession --
(A) scheme;

........
(C) accidentally takes possession knowledgeable achieved so;

.......
(3) Cost - including partial ownership, possession, right to possession or control ".
Social interests which come from injury to defend theft offense is a right to possession. This conclusion arises from the definition of behavior thief Cmshig possession, as provided in section 383 (a) (1) together with Section 83 (c) (1), or the sender legally held property hand in hand, as stated in Section 383 (a) (2). Expanding the definition of ownership for the crime of theft, beyond the civil law standard definition, so it also includes the strongest asset, or right Lhhazkto, shows that the offense came to defend against attacks. In addition to "basic offense of theft, fixed section 384, set clauses 390 to 393 of the Penal Code and special situations of theft, identity thief is unique and special status that he has had the property owner. These offenses also violate the right to possession of the property owner is also a violation of duty of loyalty owed thief, by status, owner (on this matter see the article by Dr. D. Bain, "crimes of theft-related training violation" attorney heart (Tsl"h - to "I) 346).
Crime of theft puts Hmirmh distinct social value which is essentially, when the social interest in him came to defend freedom of offense Hmirmh he will, freedom of action and freedom of choice of the top "(of based 752/90, 775, 1413 Iron v. State of Israel; State Israel v. Halperin et al [1], p. 564).


Hmirmh crime of theft offense against one injured
.47 The first question concerns the proper Ltihumn of crime and the crime of theft that Hmirmh that, when the act forbidden Nfg one person only.
Standard (Cshmhzik property is not a dismissal - and that below), then if given the strongest asset on the basis of fraud by the recipient, there is no room convicted of theft under section 383 (a) (2). This application for Section 383 (a) (2) conditioned on strong yen as 'achieved'. Meaning as 'Gene' in this context is with the consent of the owner, is clean of all Cshscmh defect. Legal foundation is receiving strong distinguishing between section 383 (a) (2) and Section 383 (a) (1), which was strong acceptance without consent of the owners or inadvertently given consent, as provided in section 383 (c) (1). On this beautiful things that were said to approve Section 263 (1) Criminal Law Ordinance, 1936 (Section 383 (a) (1) came in his place), makes the applicability of the strong legality theft offense:
"Legal possession" means accepting the burden of thing legally without cheating, etc. It seems to me that this indicates that the case of deposit means' rule out anything in the world by the owner, created after the deposit is already in legal possession of the defendant. If you say otherwise then You emptied the raised section 263 (1) planning (based on 126/58 Attorney General v. Bana [2], p. 899; my emphasis - a 'c').
Therefore, the timing of crystallization of a decision to accept a custom property owner is delimited the scope of the crime of theft under section 383 (a) (2) regarding the extent of crime Hmirmh. If formed the intention to drive the custom property owners after it achieved strong, then be theft under section 383 (a) (2), if there is no doubt about the legality of holding the property. Fshita that case did not committed the crime of receiving anything Bmirmh; so, if you receive the strongest asset has not yet made a decision passed in the heart makes it a habit to owners, it does not say that giving the property to him was based on misrepresentation. Opposite case, which formed the intention to drive the property owner passes for custom strongest asset, can not come, as stated above, definitions of Section 383 (a) (2), conditional legality possession (on this matter see A. Lederman, "Penal Code" Book of the Year Court of Israel Tsn"b - NJ (from District Tel - Aviv - Israel Bar Association - lawyer, A. Rosen - deer skin, Tsn"d) 469, 473 or higher). The conclusion from the above is that if one is injured, no Hmirmh offense, delivered underlying asset, Dre coexist with theft offense subscription section 383 (a) (2).
.48 The question is, what circumstances will constitute delivery of property on the basis of misrepresentation trick theft offense, as provided in section 383 (a) (1) in conjunction with Section 383 (c) (1), and under what circumstances she will receive Dov Bmirmh?
Not all cases where the misrepresentation was the basis of delivery of the property will necessarily overlap between crime theft crime Hmirmh. Volume crime Hmirmh broader scope of the crime of theft in terms of content display underlies the offense. Because the theft offense, the conditional existence of intention to revoke the permanent deprivation of property owners, specifically requires that this be the hidden motives of the thief. Moreover, the crime of theft Hmirmh too broad in terms of transfer rights of which a separate type of victim. While theft offense is doing and ran hard asset owned by him, the offense can do Hmirmh also owned and ran to win. On the other hand, the crime of theft Hmirmh passes broad terms the nature of behavior, because, reading Section 416 of the Penal Code indicates that the term "trick" broader term "fraud" (see this matter are based 460/79, 518/79 bandaged v. State of Israel [3]). Hmirmh overlap between crime is the crime of theft when the person will be a separate asset on the basis reinforces a false statement which hides the underlying intention of declaring deny the permanent deprivation of property owners. In this case, also plays offense theft protection violation Hmirmh social interests came to protect him, so there is no need to retire on the theft capital of the offense Hmirmh Iriath. In this spirit, determined demarcation of boundaries between crime of theft by deception offense that:
"First offense (theft is a crime - a 'c') with - going to give it up in only the strongest and second offense (she Hmirmh offense - A C) is going to give the ownership" (based on Gurevich et al 152/58 v. Attorney General [4], p. 90).
Sichumm of things, when that was damaged, there can be no overlap between crime and the crime of theft Hmirmh subscription section 383 (a) (2), which is possible only when a subscriber theft section 383 (a) (1).

Crime of theft offense Hmirmh for various injuries
.49 Another question, concerning the cases before us, is the question of the relationship between crime Hmirmh crime of theft, Csabirot those regarding different victims. Reuben committed crime of fraud against Simon, who wants to give by Reuben Property Levy, who declared that it shall deliver the property to Levy, while he was up to no morality but to deny him a permanent deprivation. Is this factual mask sits down with the possibility Reuben committed the crime Hmirmh addition to the offense of theft Shimon Levy? Essence of the argument is that the two offenses are not fences coexist, and if the property is in the hands of Reuben, even if the Isodmtzg false, he does not steal refill.
.50 To respond to the claim in question has a place to find out if the power of the false representation,
Introduced to Reuven Shimon, Levi right to grow the asset, worthy of her that will be protected - by the offense of theft.
Actions to take may require Reuben Levy win the civil law if there is between Levi and Reuben connection justifies the attribution of actions Reuben Levy. The most common bond is linked all its mission. In this context, not necessarily to say that false impression, which is a criminal offense, presenting a representative of someone before a third party, does not require the particular. Criminal prohibition that clung to deputize does not impair the validity of the mission always, because:
"Legal action to require entitles the sender if it is permission. Prohibition, Paste legal action, can sometimes lead to this, legal action does not resend permission.'s Interest in examining the nature and scope of the permission to send. Not then conduct arising Permit sender to send, then Permit, originating sender's behavior toward the third party (Compare AE 569/80). This last case will be determined on the scope of authority - according to appearances, as perceived by the third party, that appearances can Recha that will be enough to include the obligation to the sender's legal action despite the circumstances forbidden. Tall board, associated with third parties as sent but do so as soon deception to promote his private affairs and does not reveal it to third parties. If the operation falls to appearances permission, as presented before the third party on - by the sender's behavior, it has to require the sender and win, despite the private nature forbidden "(AE 318/82 Javits N. Mediterranean Car Agency Ltd. et al [5], p. 92); (my emphasis - a 'c').
In this spirit see also AE 422/85 Bank Leumi Le-Israel Ltd. v. Insurance society matter Ltd. et al [6]).
Although the case where the Levy (the example we brought) is a corporation, applicability of provisions of law mission, Tsc"h 1965, only residual, the question of legal validity of actions carried out by requiring the organ will be decided primarily on the basis of Section 105 Companies Ordinance [New Version], Law "C - .1983 but it seems that the rule, which Vactmt action to send an offense is committed to harm any case the validity of that action, will apply even when the company, for command, similar to the law, there is also the emphasis on external appearances of things. Needless He noted that if the false representation presented by Reuben Levy Mhiibat civil law, despite a criminal offense which, it must be said that if he also credits the Levy.
If false picture presented before Simon Reuben Levy credits the property rights, there is no reason to limit the protection of this right under the Penal Code. But even though we agreed that he should
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Penal law protection deploy the right Levi's strong, even if it was created by an offense committed against Simon Reuben, still have to examine whether the protection of this right will be in Section 383 (a) (1) or under Section 383 (a) (2) .
.51 The first obstacle to the applicant who is alleged to protect this right in Section 383 (a) (2) is lack of identity between morality and property stolen from the property owner (in this spirit see minority opinion verbally, 126/58 [2].) Definition of ownership expanded, as noted, section 383 (c) (3), so that it extends also to those who possessed the right to hold, as opposed to actual holdings. Hence, if that passes Ngros deliver possession of the property owner actually be the power, and that this requirement is necessary to form an offense under Section 383 (a) (2), then Empty cup of which the protection of those who has the right to hold property. Moreover, underlying Section 383 (a) (2) is the assumption that doing an act that constitutes a habit husbands stepfather rights and powers given sector owner, taking ideological voice carry the said section 383 (a) (1). even if receiving the strongest asset was based on his desire, net of any fault, the property owner, then that "the departure" of the property on - by using it for purposes other than cost consistent with the will of the owner, taking ideological equivalent property owner strengthens Onshiato without their consent. Since the focus of Section 383 (a) (2) is in breach of confidence of those who allowed the thief to hold the property on his behalf, it does not matter whether this property came directly from the owner to The thief, or indirectly, by exercise of the right to hold property owners; provided that the property was held by "verified Arichta's owner (the words of Judge Silberg oral above 126/58 [2], p. 901). For example, they the case if asked Levy Reuven Shimon and bring it to access a particular property before the property given to Reuben Levy finishes he says in his heart to the custom property owners. If they are convicted Reuben, under section 383 (a) (2), theft filler, and the fact that the property received from Shimon, and filler, would be insignificant. to say, reinforces the fact that the property was issued to Simon not rule out the possibility that it was stolen filler, provided that Reuben holds the property unlawfully.
.52 Mskbano that need not Sthazhut between morality and property stolen from the property owner, the question remains what the meaning of the phrase "lawfully" in this stuff. We stood out that Cskiim injured one, meaning the phrase "lawfully" is with the consent of the owner, is clean of all Cshscmh defect. It seems that no doubt arises in the last example we brought above, because no false representations to Simon Reuben who requires the Levi, the Levi's Shachboiotio (alongside his rights) are not founded on the subjective desire to gain possession of property Levy, Csrtzon it sought to achieve by Reuben Levy, but They are based on objective display created with Shimon Levy. That Levy's right to hold property grew out of his will did not subjective, I would not find good enough to determine that the property holds Reuben illegally. Because, under the magnifying glass should be the source of Reuben Lhhazkto asset, not the original Levi's strong win. This matter establishes Article 10 (a) law mission that:
"Every property comes to the mission due to his being held as trustee of the sender ...".
Is Teaching Section 10 (a) extends also to cases in which follow an exception to the Permit? This matter states that:
"In light of the general formula of the provision of the law in question is immaterial, if the property was to send in a day mission or in terms of violation, that is enough property to come into the hands of 'due to the mission, an expression, which includes both of these alternatives combined. Ie , will hold enough that a causal relationship between mission and making the property ... even if to follow regarding how to aim and mission and holding unusual authority  "(AE 84/80, 89 As Kassem N. N. Kassem et al; Zvi Sndrob Co. Ltd. v. N. Kassem et al [7], p. 88).
.53 Arising from the above, that in terms of civil law should be sent to eligible to hold any assets of the mission even if joining inventory assets of his own mission was not due to the sender's subjective, or it was due to action made for himself. Mshmcir Civil right of a trustee to hold the "fruit of the poisonous tree" that can not be said for criminal law is a very strong property illegally. While in the first place did not give permission to the sender, not expressly or implied, for this action, and perhaps even prohibited to carry it out, but that in retrospect can be attributed to the agreement this property, assets belonging to the mission, held him on - by sending. But we said that it has the power to hold assets that reached him by sending the mission, did not say he possesses the freedom to do assets Oh whatever he likes. Duty of loyalty to all its operations to qualify the liberty of sending the property, and because he may Infringement criminal debt under Section 383 (a) (2).
.54 We have said that crime affects not Hmirmh foundations existed theft offense. But is crime of theft which negates the assumption that implicit binding agreement entitles the Levy, the possibility of fraud crime take place? Because from the perspective of morality artifact (Simon) did not affect the false representation of his freedom of association. I believe the fact that rolling Civil damages in certain circumstances the display on the back of the sender (Levy), the representation is false Mayen, and which derogate from the Anti - Social inherent behavior of getting the property (Reuben). Because, as the judge put it well (so described) Barak:
"Found that certain behaviors can constitute 'legal action' interest law mission, and can constitute an action, which has outlawed mission results. No one aspect of her rule out the existence of the other aspect. Thus, for example, has sent proposal, based on capacity used on - by the third party, it has
Because ... a scam ... Under these circumstances must be distinguished from that part, which is within the law which it applies the law mission, and that part, that violates the law bowels Laws apply to systems outside the law mission "(AE 318/82 [5] above, p. 91 -- 92).
.55 Arising from the above, that conceptually the offense against Shimon Hmirmh can settle with the possibility of theft offense also performed filler. But is is also appropriate that the swarm case the offense of theft offense Hmirmh next? Behavioral element of an offense of fraudulently receiving nothing is not the same behavioral component of the crime of theft. The offense of receiving anything Bmirmh result is an offense, Csrciva behavior is showing a false claim, which results - Get it on the basis of this claim. The result of an offense that is a special kind of result, because it embodies behavioral component is receiving it. Component due to the uniqueness of the result of crime Hmirmh may be cases where there is overlap between the behavioral component of another offense. If on the basis of a separate false representation Shimon Levy owned property and held it for the benefit of Reuben, Reuben believes he cut the contract as an extension of Levy, the offense Hmirmh perfect point in time when property owned by a separate high, as soon is unlikely that this point coincides deliver powerful asset. When receiving the strongest asset blended with sending hand, in accepting the strongest complements the offense Hmirmh Vida the theft offense. Under these circumstances, the launch point between Hmirmh crime of theft offense is not their ingredients behavioral component of the offenses, but the result of crime deception. So this is not a single physical behavior which both norms and weaknesses, but in two separate behaviors that maintain an internal connection between them.
Since Hmirmh offense than theft offense that differ not only the identity of the victims of them, but also - and especially - the social values that are essentially, the difference is the purpose of the ban justifies applicability of the two prohibitions incremental mask is factual, despite the internal connection between them. If that went to interest us is that when "one chain of acts of crime each independent existence even though the internal connection between them ... (it - A C) that can be considered in the context of punishment ..." (From 5734/91 based, 276/92, 317, 318 N. State of Israel, Leumi & Co. Investment Bank Ltd et al; Rubinstein et al v. State of Israel [8], p. 21; and majority Ltd. P. 130/88 Grossman v. State of Israel [9]).

Multiple offenses of theft and physical action
.56 Second sub-claim raised by the island - the power of Goldin scholars was that the power of a single physical action Thi grow independent of theft offenses: one for the corporation, the other for investors.

Since conceptually object theft offense is lesser ownership rights, as provided in section 383 (c) (3), not impossible that the right would be in the hands of another person, there is no prevention "technically" that taking property or asset of sending hand will throw two independent offenses of theft. Another question is under what circumstances should a single physical action he will throw a number of offenses, leading to a conviction in crimes.
When the - by the physical action of the various levels of casualties vested right, there is no justification to convict a number of theft offenses as the number of casualties. That is, for example, Csrauven steal property hired by someone unknown. In this case, should not blame the Reuben that committed two offenses of theft: one against the other to a certain anonymous. But things are different because of the strong blending Csbfgiah also breach the duty of trust owed thief each of the victims. If it is the duty of an independent trust suffered essentially different, it gives added value Infringement violation of the right retention, thus being denied identity and values affected, the identity values Umsnsllt victims opened the door to double the Court. Because there is no preventive principle that a person Ihov double duty of loyalty, both the corporation which he serves as a third party and morality in his hands the strongest asset, there is no reason why a single physical action will throw both offense of theft by unauthorized and offense of theft by a manager.
To sum up: nothing prevents in principle that certain facts will throw mask for various injuries crime fraud theft offense, as nothing prevents it will throw two independent offenses of theft.
.57 Internal divisions between the two forms of theft offense (ie, Section 383 (a) (1) and Article 383 (a) (2)), serves as a strong legal foundation delineates the boundaries of each. Application of the principles listed above have to consider it that because of multiple characters is not impossible to have a legal relationship (including mission affinity) between the offense and the victim does. This bond does not change the scope of the crime of theft in relation to the scope Hmirmh offense, but it throws on the internal Tihumn theft of two forms of the above, since, as stated, she radiates the interpretation to give to the phrase "lawfully", mentioned in section 383 (a) (2 .) stood above that the holder has to be considered legally the property even if "earned" the right to illegally sent to hold the property, which under section 10 (a) law mission. to be considered lawful holder throne even if he got possession of it from the sender himself on the basis of false claims, according to which he intends to make a legal action for sent, while his heart made a decision to drive a custom property owners. Msnotzra mission pursuant to Section 10 (a), will be sent in any case holding the property legally, this section does not distinguish between a situation where came the property by sending from a third party and the case where the property came to him from the sender. Therefore, given the teaching of Section 10 (a) of the Law shall be deemed to mission, to Section 383 (a) (2), holder lawfully on - even Hmirmh strong underlying delivery.


Ownership of money: Civil
.58 After Tueni Ltihumn principles of crime and Hmirmh that theft offenses that, we will examine which of norms prohibiting weaknesses and the actions of Goldin. Classification of offenses committed against Goldin investors be derived, as stated, whether on the basis of display presented by Goldin separated them last owned the property, when the offense was committed Bmirmh of receiving nothing, or shoot ownership investors separate from their money where only the strongest, then there is room to examine the basics of theft offense.
On - in order to answer this question has to consider that money is the most obvious Hnhlf property, which holds a particular bill does not matter but when purchasing power. Moreover, the effectiveness of money whose purchasing power requires "Shroto" will be high, and - yes requires that commercial efficiency not get the money burden imposed to check the nature of the right of giving money, and that more had to leave the premise that giving money, holding him, he Even the owner. Against this background it is easy to understand the court's tendency to "limit the cases in which the owner is holding the money" (from I. Weissman, Property Law - General Part (Institute for Legislative Research and Comparative Law Prof. Harry and Michael Sacher Tsn"g) 347).
More should be noted that civil law distinguishes between a situation where getting free money to do it I understand it, and the situation in which he is subject to its conditions of giving money. For example, "When can sum - money to invest in certain asset for giving money, the money just keeps getting money for investment and acts as a trustee. However, money can be a loan, a borrower is not true, since there is no obligation on him to keep him or to act in a certain way "(of S. Kerem, loyalty (H.s.l., 3rd edition, תשנ"ה) 129-130). but that we said that a person holds the money as trustee did not say that money should not be seen as the owner. If not It is quite possible that the trustee under the trust acquire ownership of the trust assets (on this matter see Karm, the above book, p. 69-70; opinion expressed recently in passing that the trustee acquires ownership of general trust assets AE 3829/91 saw Wallace v. Gat et al [10]), the reasons we were above them have to say that when the trust assets are money, ownership of which shall be given to a trustee who holds them.

Ownership of money: Criminal
.59 This position is consistent with the nature of the criminal law, divorced from commercial considerations of efficiency, the adoption was the difficulty cities face a criminal conviction of one who holds money between legally and illegally, for another. When holding the money was obtained illegally, then no ownership in, derived from the possession, not legal, and - yes is not a defense against theft under section 383 (a) (1). However, when strong, and with possession, lawfully obtained, is the holder ownership of money protects against a criminal conviction. No wonder, on - so, why permanent split between the Penal Code and the ownership of holding money in it, and thereby created --

"Fiction of ownership of money or other property, left by the alleged defendant gives instructions to fill orders, or she goes immediately to his person for money, although according to civil law ownership is by the defendant himself. ... Fiction has been developed to capture the network of laws Hgnivhgm cases of sending - Hand funds or other assets - employees, agents and various faithful, that otherwise would go exempt, because their actions because the deprivation of property owned by others ... " (Of 134/62 based Margalit v. Attorney General [11], p. 204).

Section 386 of the Penal Code states that:
"... Receiving money or securities teaching ... all ... the money or property used wholly or partly for the purpose shall be paid or a certain person as interpreted in teaching ¬ see the money man ... Cncso of whom received the money ... to filled teaching.

Article 387 of the Penal Code states that:
"... Receiving money for someone - will see the money of the person for whom Cncso received...".
When Simon asks to borrow money through Reuven Levy, apply Article 387, which states that ownership of the money Tiohs Levi, getting the loan. Since both eyes of the criminal law, attributing the ownership of money and the recipient of the loan, the loan owned by a separate giving money, the secondary loan based on false claims, false claims convicted argues, as oral 152/58 (4) above, taking nothing Bmirmh gives loan (Shimon) theft from the loan is for him. In this context I will mention that I'm not going to court Kamma that whenever that receives property - to Shimsrno particular person, he was licensed property of ethics. For example, when an employee receives property from a third party on - to Shimsrno employer. Employee is the mission of the employer, but he is not an authorized third party, with no direct legal connection between the third party and it works. If, for example we brought above, will use the loan funds Reuben convicted of stealing personal needs loan recipient (Levy), for attributing criminal law his ownership of money even though it had not reached maintenance.
.60 It seems that no doubt can arise when an investor gives the company money on investments - in order that it will invest it for him, holding these funds investment company, trustee (see vineyard interests, this book, p. 155). But those same attributes Criminal possession of the funds held in trust for another? similarity between the nature of the trust (which
הצג סקריפט אנגלי
Trustee holds the trust created by order in favor of enjoying the property or for another purpose) and the description presented in Section 386 of the Penal Code, indicates that the interest of this section holds true Escrow, trust assets and ownership attributes section enjoys. This conclusion is also consistent with the English criminal law, which absorbed fictions according to which ownership of the said assets Namu attributed to enjoy. For example, said last appeal in this context, the Secretariat Shaovdotio case before us, that the ownership of investors who invested funds with investments remained in their hands. On - that the manager also stopped using an investment company investor funds for purposes contrary to the investment, investors moved to the offense of theft: If Barlow Clowes was a Trustee of Invested funds ... the funds Remained the And Clowes, in (3) and (2), ( 1) 5diverting the funds to his own use, Appropriated investors' property by Virtue of s Property Belonging to another and is guilty in, At [27] (1994) (. 2no) r. V. Clowes). "Each case of theft (322
This matter see also (1993,. 7 th ed, london) j. C. Smith, the law of theft .36
.61 Oral 293/89 M. Sokolovsky et al v. State of Israel [12] tended to Judge S. Levin opinion that Section 386 does not apply where "the person whom received money or tickets 1st appellant himself is not a third person ..." (where , p. 145; emphasis added ¬ A, C). But even if its existence is contingent upon applicability section of loyalty, no place to condition the formation loyalty Applicability only three separate physical entities: creating trust, the trustee and Nana, which - according to civil law is preventing identity that will create trust between the beneficiary (on this matter see Kerem, this book, on page 88, 90). In circumstances where there is identity between creating loyalty and nodded, then delivering the money is also the person to whom the money was received ", as stated in Section 386, and - yes he held for the purpose of criminal law to its owner. Therefore, the fact that a third person in front of us, figure nodded blended form creates trust, is not an obstacle to application of Article .386
.62 Oral 293/89 [12] Vice-President believed this (so described) Barak that application of Article 386 is limited to instances "where instruction is to use the particular funds and funds given to others" (ibid. p. 155). I mean, "the recipient must make use of special bills received, including and not others" (ibid. p. 154). On - according to this mind-load could claim that since investors have agreed to deposit their money in a bank account, they have no interest in certain bills, and - yes did not apply Section .386 I think, that there is room to contemplate another sweeping conclusion that Section 386 application restricted to cases in which moral intent The money would be used for certain bills. This restriction not only inconsistent with the language of Section 386, but is also consistent with reality Anna van attaches importance not their own bills, and the tendency in modern society do not hold funds but Lhfkidm
Banking institutions, which can not track specific bills, but then their buying power only. On - yes it can be said, proved that morality was a matter of money paid those bills will actually use is a sufficient condition to apply Article 386, since this evidence for the existence of loyalty. But there is no room to determine that a necessary condition, that civil law does not condition the existence of loyalty. Property real loyalty is not the specific bills but buying power they represent. Therefore, the fact that investors were indifferent to the question which bills purchased securities not to rule out the possibility created loyalty, and assuming that this is indeed formed, apply Section .386
Mshsrno the obstacles to apply Section 386, the obvious conclusion that the illness retained ownership of funds investors. It is not by virtue of being creators of loyalty, but by being enjoyed on the mouth, ie, who "for which money was received. By Cih right to hold those funds as trustee for the investors, and they were Goldin, who is a trustee of. Cih fact that funds were delivered to the Custodian (Goldin) on behalf of the Custodian (Cih) is taking away the rights in the criminal law attaches to investors. And - yes, Msnotra ownership of funds in their hands, and all removed them due to the strong claims Hmirmh is money, there were elements to examine whether the theft. If these were, it seems that there is no doubt Goldin is an authorized, pursuant to Section 393 (2). Cih is a right to hold property, and is protected - by the crime of theft, and - yes there is also examining the foundations existed in this context. If these existed, then the law Goldin was convicted of theft by a manager, when no doubt about his role as director on -. Cih now apply the principles we agreed on each of the charges, consider the claims uploaded them.

The first charge
.63 Charges that turned on a loan amount 000,650, 1 NIS lent fiber company to -, Cih which was recorded last win in the library of Spencer Company. On the basis of this registry was transferred to a total of 000,645, 1 NIS account of Terray. This charge Goldin also charged for loans from all trade (through Cih) only 000,000, $ 1 Bmirmh, whose conviction lawfully obtaining this loan Bmirmh not asked to share the appeal before us.
Those convicted for acts which Bmirmh obtaining Goldin, false registration of corporate documents, theft by theft by a manager allows. This indictment is the focus of the loan given to fiber company -. Cih Hence, if proven foundation lie REPRESENTATIONS Goldin presented before fiber company, the law was convicted of accepting anything Bmirmh it. However, as the company separated fibers, even from the standpoint of criminal law, which owns the funds, you can not say that Goldin had stolen the money from her. On the other hand, should be examined in light of Article 387 of the Penal Code, attributing the ownership
Loan money to -, Cih if elements exist from theft offense. If the elements exist for the theft offense Cih then there is room to convict Goldin theft by a director and also convicted of theft by unauthorized, any more than they should convict him of theft and theft by the employee by the manager. Authorized position and status as Cih Mtzmihim are two independent trust her debts, these loyalties represent two sides of same coin. If convicted Goldin both offense of theft by a manager and an offense of theft by unauthorized, but it will not be an artificial increase of the offenses. Doc: In this context, credit theft by unauthorized transfer, "Credit is a technical nature - only records crimes in question given that 'overlapping' offenses which appellant was convicted for those acts" (based on 7024/93 tin v. State of Israel [13], p. 28-29).

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.67 E - The power of Goldin scholars also shared the court determined that existed Essentials Kama theft offense. They argue that the object can not be theft of money, since Cih --
"Financial account recorded in Spencer - Cih begin circumstances explained above. There was the transfer of funds from Spencer on - Cih because sending money Cih hand as funds were Spencer's.
This argument does not get by. Listing liabilities of Cih library declarative character, but not the power of an error in the registry to create from scratch. Right to the funds remained in my hand, hic realization of this right to gain recorded in error "eligible" (ie Spencer) created, in terms of factual foundation, the space inventory of assets. Cih here that the object of theft, financial, corporate Cih was possible stolen property.
.68 Another argument raised by Goldin is not sending a hand held element, because instructions to transfer the funds disguised accounts were signed by the authorized signature information.
This, he claimed, had given its consent Cih transfer funds, although he does not dispute that "this agreement was obtained fraudulently or trick".
If the property owner gave his consent that someone would do a custom property owners, the sector did not exceed certain rights (ie forces and liberties) earned him an asset, not created harm the rights of property owners. This agreement should be given the same meaning in both forms of the crime of theft (under section 383 (a) (1) and Article 383 (a) (2)). And just as flawed agreement as provided in section 383 (c) (1) is not consensus regarding Section 383 (a) (1), so it does not also agree to Section 383 (a) (2) (based on this matter see 202/69 State of Israel v. Rosenfeld [14], recently mentioned oral 121/88 State of Israel v. Darwish et al [15], p. 706). Therefore, rather
By signing the signatory was achieved due to the additional Htaiito to determine that the agreement is defective is not a consensus.
.69 According to Goldin, the fact repaid the loans subject of the indictment charge that carries the third scheduled, not yet exposed his actions, has to teach that sought to deny the permanent deprivation of funds. Therefore have a right not only charges which were returned to the loans, but also the charges which were not returned. If not yet reached the date of repayment of loans, have to give him the benefit of the doubt that was indeed the same footing.
This claim relates to examine the psychological element theft offense, and that if the object of theft is money, no matter the victim returned to certain bills. This regard the judge said Berenson:
"... When money is not an absolute obligation to return it actually received money for safekeeping in trust, provided that the sum is returned on time during that time Depositary Authority is appropriate sum of money, and lives just hoping or expecting that in time he will have sufficient funds Lhhazrto" (based on 176/74 Judah v. State of Israel Appeal counter [16], p. 557).
Acting President (so described) Y. Cohen expressed his opinion to the effect that:
"... (There - A C) on the defendant to show, he had actually kept the amount of money needed to return the amount taken without permission, but enough, if the defendant shows that he intended to return the money, and had reason to believe, he could do so without causing damage or not - convenience to the owner "(based on 594/81 State of Israel v. Aloni [17], p. 68).
.70 But even if we adopt the approach that makes it easy, that the defendant Hmstfkt expect that when Sttgbs civil obligation to return the money would be in his possession the amount requested, and it requires that the defendant shall be repayment ability when taking or sending funds in hand, the case Dana evidence of criminal thinking. Ostensibly, were available Goldin two possible sources to raise capital. The first source is the high yield investments looked forward to her future transactions, the second source is called Cih raise funds to new investors.
Goldin Tzifiito of investments that will yield fruit forward transactions return the funds, does not negate the criminal mind. This matter states that:
"Since 'going on - Terms, Cshtmmsot condition is not solely dependent on the defendant, is the basis for criminal responsibility, and because the protected interest is a theft offense
Maintaining the property of others, no place to put assets at risk. As a result, that is not enough chance by the defendant that he will answer the theft, and should that be required from the degree of certainty that. Defendant's hopes of certain non-return expectations, there is room to consider theft at court decree, rather than the point of conviction.
Outgoing all we have said, that the test is objective Hmirmh element, while the test for the existence of the intention to restore the theft is subjective, with the intention of the software is recoverable value certainty, on - of who takes the view while taking it. This intention can Stilmd complex circumstances, assuming there is no consideration - the subjective opinion of a defendant getting off explained "(based on 752/90, 775, 1413 [1] above, p. 561).
Present speculative nature of future transactions, and destroyed their success was not solely dependent Goldin, you can not say that was the basic assumption that with the chances inherent in transactions rather it is realized, not risk. The fact that funds were returned to practice certain loans is just wisdom of hindsight, not up and does not lower interest crystallization criminal mind when sending hand these funds.
.71 Also I do not think that when you send a hand in loans could be certain that Goldin could repay the obligations of hic by taking new loans. This depended on the scope of obligations - that, under conditions that prevail in the economy at that time - apart. Even say that certainty was receiving additional loans the same way he received the previous loans, the power of an offense that was later going to deny he had a previous offense. Recognizing the power of late about the social damage given to correct a previous injury to the same value, sin for the purpose of criminal law, seeking to prevent any damage from that value. Coat as a tort claim will not do, nor would it credible claim of protection. Therefore, the return of the rotten fruits of theft by rotten fruits of another theft is the criminal act Mayen first (as for the example presented oral see 164/69 State of Israel v. Epstein et al Appeal counter [18], p. 832). assumed that there is no reliance on the power system "rolling money" to negate the mental element constant theft offense, not rising, seemingly consistent with management practices that determine the way business is rolling funds necessarily indicate criminal intent (on this matter see: A. " 223/88 Larry P. v. State of Israel [19]; based on 51/88 Don v. State of Israel [20]). But is not the same commercial activity, not glue it wrong fundamentally, slid toward the margins of criminal activity is prohibited in the first place. Hence , that Goldin's hope he can repay the obligations of Cih to lenders (and thus return the taking of it) on - by taking new loans assume the name, does not negate the criminal mind.

To sum up: law Goldin was convicted of false registration of corporate documents, receiving nothing Bmirmh theft by a manager. The offense of theft by unauthorized deserves credit, from the point of "technical" we were going to section 63 above.
Hence we examine the allegations more charges just as there are extra to what is claimed in the first indictment.

The second charge
.72 Charge is turned on only 000,250 loan, 1 NIS temper-mail to -. Cih the money deposited Electra Terray's expense, as requested in a letter signed by Goldin's signature signature Hnhzit Mr. Steingrt (A / 2 / 57).
Since the focus of this indictment is a loan, the law was convicted of obtaining anything Goldin Bmirmh Electra for receiving the loan, which, as noted, there is a challenge. If crime were theft from foundations -, then law Cih Goldin was convicted of theft by a manager, and - to avoid the artificial Mribwein of crimes have no place convicted for theft from - Cih also theft by unauthorized.
.73 As noted above, Goldin asked to share the existence of a theft offense elements. The first argument is the loan funds are not property of the corporation, the role of mediation between Cih Htzttzmm Terray company Electra. He claimed that there was no party Cih loan agreement, the agreement does not have and earned her loan funds. If indeed there was an element of Goldin claims that Cih was only mediator between Terray Electra, then he stole a credit transfer of funds a reason that "Property Corporation. But claimed that no evidence grip, Cshscm loan embodies the commitments of Cih repay the loan (A / 1 / 57). Moreover, Goldin did not ask to share the conviction that making Bmirmh when Hmirmhhtbtah presenting a false representation, as Cih wish to receive the loan funds. Since the loan agreement requires that entitles you, Cih since loan funds are held Criminal Cncso who they are for their (ie Cih), the corporation which are a possible stolen property.
.74 Another point gave the island - the power of Goldin scholars that this property is protected - by the offense of theft by a manager is, these funds reached Goldin due to its role in a corporation. Their claim they rely on the words of J. Front book on criminal law (squid, Volume I, Tsn"d) 324) that: "In the absence of an explicit provision extends the concept of 'corporate property, property obtained by the director or officer fills' pursuant to his role in a corporation - such as teaching found in sections 390 and - 391 Lhn"s, about theft by public servant or by the employee - it seems that not be possible to expand the concept in this direction by way of interpretation. "

I doubt if necessary expand the definition of protected properties in theft offense that will include apartments came to doing his job by the offense or to his employer, as stated in Articles 390 and - 391 of the Penal Code. This broad definition in light of the assets owned by the corporation or employer, Camorbsa'if 383 (c) (3) (point option overlap between the employer owned property asset by an employee who saw his work based on 861/79 Mirilsoili v. State of Israel [21], 165-166). Also, the possible overlap between theft by employee theft by a manager to justify adopting a broad interpretation of the term "property corporation". if Dana does not even need to rule on the question of the relation between the circle "corporate assets" assets from the circle to the officer due to its role , since by reason of the regular fiction section 387 of the Penal Code already attributed to ownership loan funds -. Cih settled the case, there is no doubt that before us Property Corporation.
.75 More claim on the island - the power of Goldin scholars, that even if the loan funds are a corporation's property, the holder Goldin is not considered them "as he had the power, at any order making money without the consent of an authorized signature information on -- Cih or the Electra.
The term "strong" appears in different contexts in the Penal Code. There is a strong behavioral component of the offense (such as drug possession), there she is the object of the offense, which hit him came from the offense to protect (such as theft offense), and - Cbmkra question before us - is a powerful circumstances that allows a thief to reach the property held on - hands.

Section 2 of the Penal Code states:
" 'Possession' - control of a person on the present hand, the hand of another, or anywhere, the place belonged to him or not; which they present or Vahazktm of one or several members of the group knowledge of the rest of their agreement they will be found in each of Ovhhazktm them and everyone alike. "
Control, ie the ability to determine the fate of the property, a foundation, central definition of possession. The question is whether the control of a property for the purpose of Section 383 (a) (2) must be exclusive in the sense that Slosh transferred power to determine the fate of property independently, or was rather limited ability to determine the fate of the property.
When holding the property is prohibited conduct, states that "control is Bbladioth conditions ..." (See Justice Barak oral 250/84 Hucstadt v. State of Israel [22], p. 825-826, adopted oral 1478/91 State of Israel v. Rovbshi et al [23]). But this interpretation does not fulfill the purpose of theft offense, which is strong circumstantial element, which allows the
הצג סקריפט אנגלי
Making sending hand. Physical object of the crime of theft is a complex of other assets, such harm that "lacking expressed inevitable, leaving the theft of other assets assemblage" (of that "bull, penal laws (Institute for Legislative Research and Comparative Law Prof. Harry Sacher, vol c, Tsn"b) 250). The phrase "Sending a hand" should be given a broad interpretation, so that it encompasses any act that brings diminution of assets worth of others, and expressed "strong", sending the previous hand, should be given broad interpretation to include any control that allows doing volume of assets transferred derogating others. Since the focus of crime of theft is the thief leaves the physical space inventory assets of others, the cavity that remains even if the civil law does not recognize the legal validity of the action, and makes the offense or the third party has a duty to fill the void on - by Disable the property. because even a limited control over property, failure of referendums joins a third party, may create the space assets of other motor, it Sldrist exclusive control has no place in section 383 (a) (2).
.76 Turn out to examine whether behavioral component take place of the crime of theft under section 383 (a) (2), is sending a hand. The question is whether enough money deposit mix of private accounts to be transferred does send a hand (see this matter based on 365/74 lever v. State of Israel [24]), or sending a hand is expressed using the money - by doing an offense needs the private , n. multiplexing their money ... Reinforcement is more evidence that the use of his needs, he makes money deposit personal login, comes to a criminal offense of theft "(see this matter based on 69/82 Almagor v. State of Israel [25], p. 764). According to opinion that makes it easy, as long as money is not used, not formed a perfect offense of theft, but only experience. However, if the purpose of depositing money into private offense is making profits in the banking system, then use the money merge deposit, must be that because sending a hand. In my opinion, mixing well enough funds to be held the factual foundation of sending hand. Theft offense if the focus is, as stated, other assets decrease, the decrease is forming deposit funds with the private account of an office holder, forget buying credited money excluded from its owner. There are no preventive impose criminal responsibility Cshaosh ran his own clerk not the funds in his account, but ordered to do so after, and obeyed his orders. Hence, the fact that Electra loan deposited the money at the expense of Terray to rule out the possibility Goldin, parent company Electra to do so, sending convicted hand these funds. Separate question is whether the - by mixing the funds requested Oshhabira serve the good of the owner, then there is no threshold requirement of section 383 (a) (2), or sought to serve the personal needs, and that later.
.77 More claim on the island - the power of Goldin scholars held that the Basic sending hand, because - Cih agreement that gave the loan funds will be transferred to the account of Terray, evidence that the document instructed to do so Electra was signed by another signature Goldin's signature Hnhzit Mr. Steingrt (Z / 2 / 57).

We were above that the consent of the owner rejects the sending hand basis, but rather Goldin's signature should not consent to the criminal law. That even if an agreement can be attributed to Goldin corporation the power to hold assets on its behalf, not give him consent to Goldin also the freedom to do whatever assets the spirit. Hence, that Goldin's signature can not be evidence of consent of the corporation, Cshhirot sign for this purpose was given in his hands (on this matter see: d. W. Elliott, directors Thefts. 732Crim. L. Rev [1991]. And Dishonesty on this should be added, that Mshorsha Goldin forging the signature of Mr. Steingrt on top of this document (p. 101 verdict), which is not challenged, slipping from under the claim that this signature is evidence of consent to transfer funds Cih account of Terray. On the contrary, that Goldin had to fake the Mr. Steingrt's signature indicates that Cih not given by the competent organs of her consent to this transfer.
Add .78 claim the island - the power of Goldin scholars that his actions meant to benefit, and Cih - so do not say that reached the funds use of other than a thing ", as required by section 383 (a) (2). That return come - expert power of the state that even if the determined purpose of Goldin would benefit hic does not negate the criminal acts, we are dealing Csldath motive for the offense, which did not matter the point of criminal responsibility.
I can not find a place to say that Goldin's actions were in favor, Cih excluded measures adopted for raising the funds can not settle with the objective benefit. Cih As oral 752/90, 775, 1413 [1] above, p. 609;
"Consideration of the good bank can not settle with taking money Bmirmh, as you can not talk about reasonable banking considerations, the money was taken through fraud. Examination of discretion - the measure of banking, bank money lender legally, can not stand any discussion For a banker who sent his bank financial Bmirmh, because it literally has contradiction in terms. "
The majority opinion verbally, 752/90, 775, 1413 [1] thought that this view of the actions of the offense makes a broad perspective, against the overall interests that are before the eyes of an office holder. However, even implementing a test stick that will lead to the conclusion that it will benefit the foundation was Cih Goldin's actions. Expected profit from a certain degree of risk which is derived, and two inverse relationship exists. Hard to say our case, that Goldin assumed that high-risk activities serve the good. Cih have emphasize and clarify that the touchstone for the existence of intent to benefit the injured party is not
Usefulness objective but the subjective intention of doing the crime. Objective criterion is just north of a utility's heart does the offense.
Arising from that law is grouped Goldin was convicted of an offense of theft by a director, and the offense of theft by unauthorized credit have the right "technical", as explained above.

Third and fourth charges
.79 Case of two counts of these two loans is her account of Scsfihn deposited, Cih then transferred, on the basis of transfer instructions signed - signed by another licensed Goldin, Goldin's secret accounts.
Since these charges are to target loans, I can not find a place to repeat the analysis Tihumn of offenses. You can summarize and say that the offense was committed investors of receiving only thing Bmirmh. The loan funds were deposited in bank accounts, Cih and - yes should be examined if the elements exist from theft offense -. Cih if they existed, the law Goldin was convicted of theft by a manager, and a convict him of theft by a licensed well.
.80 I can not find real Goldin's claim that the fact that weight should be given a letter from the brothers collapsed, which sought to exercise their right to early repayment of the loan subject of the fourth charge, was not submitted as evidence at trial. This letter, the - alleged, was to serve as evidence that the brothers collapsed Shmshaltm was their money will be transferred to account of Edmund Dallal. But I do not think that the doubt arises that the transfer of funds was not the opinion of the brothers collapsed. Testimony of Mr. Aokshorn, thought the company of Moses Carasso (p. 756), the testimony of Mr. Benjamin collapsed (p. 778, 784) indicate that such a provision - written or husband - here - not given the world - their hands, and that they are not know at the Edmund Dalal, Slhsbono transferred funds. Account of the fact that Edmund Dellal is only one press accounts of Goldin Atisodot also undermines the argument that it was Mshaltm Brothers collapsed.
Arising from that law is grouped Goldin was convicted of an offense of theft by a director, as we explained, has the right of the offense of theft by unauthorized.

The fifth indictment
.81 Is the focus of charges that he opened a bank account in the name of Cih Goldin branch "Garden City", and disagrees that Cih was not aware of the activities carried out there. Goldin ordered six different escorts, Thomas believed that they were accompanied by funds to -, Cih deposit the amounts
Loan account. Goldin drew from this account on - 39 occasions a total of 873,385, 6 shekels.
Principles on which we stood above indicates that since the amounts deposited to the loan given -, Cih Mountains whom the offense was committed lenders receive nothing Bmirmh only.
.82 Claim of the island - the power of scholars Goldin is deposited into the bank account funds are not property of the corporation, since h - Cih was not aware of right to hold these funds.
Depositing funds in the bank gives the bank with them, and by depositing funds remains Aovligtorit right to sue the bank receiving the value. Aovligtoriut rights also serve as an object of ownership (eg stock). On - the laws of property ownership rights Haovligtoriut is supposed to -, Cih as bank account opened in her name. Cih lack of awareness of her rights not appropriated these rights away, the property is stolen (is the right Haovligtorit to the bank) was a wholly owned. Cih there is no justification to limit the definition of "property" in relation to criminal law scope of property law, so that only assets the victim was aware that ownership will be protected by offense theft. This reduction is not a language of Penal Law and purpose. In this spirit, said that a bank account opened in the name of the corporation without his knowledge is Property Corporation:
"The final conclusion will not change even if we go with the expectation that by discovering the affair did not know the company (CEOs and members of the Board) the existence of the special account ... Talking point is: since the bank recognized as a special account Amidar account, it is clear that the power of exclusive control of the amounts available to this account was given in principle by the company and not by the appellant, that she could turn this power when she learned of the existence of the account. Ha evidence that the affair was discovered when the company ordered the closure of bank account the special ... Finally, the fact that over time the appellant made a special account at home, it took out money to provide Gemach s charitable donations and distribution, while indicative of acts - theft (see below), but not between this matter and Amidar's right to exclusive control account in question and nothing "(of 515/75 based on Katz v. State of Israel [26], p. 689).
.83 More claim on the island - the power of Goldin scholars, that - according to the account opening documents to the bank was not entitled to respect Goldin's phone orders. That respected the orders of Goldin, the Bank exceeded the permission, liability for Cih remained on - even though the transfer of funds. On - though this claim should be transferred funds - the same instructions as an asset rather than as an asset of the bank's. Cih
This argument raises the question whether the burden to the charge continues to lie about Nablus debtor can say stolen right off. When the object of theft is property Corporal, a physical reality, not the existence of a civil obligation to return the property to uncreate the space created due to inventory assets other strong denial. Clear is that until we find the property returned, injured victim's ability to derive pleasure transferred this property. When the object of theft is insubstantial physical property, then where's exploits when exposed to the offense does indeed return the number of eligible assets to normal. But until then injured, ideological, the property owner's ability to derive pleasure Mzkoiotiohhozivt toward creditor at that time. This matter reads: A bank credit, similarly, may be Pratically affected by an act that is, the debit to the account that results from it will not be corrected and not a mandate to the bank. For if d's fraud should remain Undiscovered P will in a practical sense be Deprived of his asset. Now it seems clear. So the requirement of an intention of permanently depriving that whether p should d commits theft can hardly depend on whether he is found out in fact be permanently Debited if his fraud is be Regarded as satisfied by d's knowledge that the account will Completely successful, as he may Readily
"stealing and Obtaining bank credits, e. Griew). Be taken to intend (364,. 356Crim. L. Rev [1986] that English law that stops right also must be continues to be stolen the creditor on debt - according to civil law principles (see [28] (1988) v sin . Regina-chan man).
Hence there to accept the argument that because the - the civil law owed to the bank Cih not stolen right of the corporation.
.84 Added, claiming the island - S. Goldin power that scholars from anywhere there is no room convicted of stealing sums of Cih used company loans outstanding fiber Alauf company, having already been convicted of theft from these funds - Cih charges 1 and - 3 stood above that the return of the rotten fruits of theft One is through theft or criminal Mayen the first theft. The argument now is that when two HG contempt "are the same hurt, the GH Oil shed" the criminal element was missing the second. So, if other assets monument defined as the difference between obligations and rights (Bmovnn wide), the diminution of his rights and obligations and the same amount does not change the scope of his assets. In this case, allegedly changed his creditors identity of Cih but not extent its obligations, if not created more inventory space assets, there is no theft conviction. Question whether it is appropriate to adopt a test of "balance" that when change is intended to cover the space where the creation of an initial space formed theft,
Not yet been decided in case law (on this matter see the judge's careful words Landau oral 164/69
[18] above). But in this case did not require a decision on this question, when Goldin was convicted twice the amounts relating Olalauf fibers, light Bath Statement - expert power of the state (see paragraph 24 above).

Sixth charge
.85 Are the focus of investments sixth indictment of seven foreign investors, which - according to agreements between Cih conducted last was supposed to run for each portfolio. Signed for this purpose each of the investors of attorney - power authorizing the Goldin perform the steps necessary for him to manage the investment portfolio. Funds deposited in her account of Cih then transferred on the basis of orders of Goldin accounts in Switzerland.
.86 Charge that the funds held in trust for investors Cih. Since Article 386 of the Penal Law attributes the ownership of funds invested to investors, then use them for purposes contrary to the deposit constitutes theft. More should be noted that when he signed each of the investors' attorney - gives power Goldin him the power to perform the steps necessary to manage the investment portfolio, then forming a direct legal connection between investors and independent Goldin, imposing on him the duty of an independent trust to investors. Therefore, if elements exist theft from investors, the law was convicted of theft by unauthorized. Doc: Not as approved by, Cih except as approved by the investors on the basis of attorney - power. By Cih was right to hold funds, that is protected - by the crime of theft, and thus test the foundations were also in this context. That exist - then the law that Goldin was convicted of theft by a manager.
.87 I can not find a place to repeat the arguments of Goldin already rejected, and - yes focus on the contention that all transfers were carried out in coordination with the customers consent.
I believe that the prosecution raised the initial burden to prove that investors did not give their consent to the transfer of funds in their account.
Between the deposit of funds at the expense of Cih and transfer bank account in Switzerland passed a short period. It is likely that investors would begin with interest in investing their money ran parallel system Goldin, despite it deposited the funds (which were in foreign currency) bank account of Cih and not directly in bank account in Switzerland (Csvaskah "circular" It is also feared the decline in value of money due to conversion coins). Very nice things about their investments of Samuel, Nellie Gophilko Nasser.
הצג סקריפט אנגלי
Not only that, but the fact that investors' funds were transferred to an intermediate station one M"h various press "of Goldin directly invested in Switzerland and the planned investment, teaching, over things, the minister and made an attempt to conceal the money trail.
Furthermore, the testimonies of foreign investors who testified do not hold Golden contends that they gave their consent to the transfer of funds. Umshtmotadt line of defense for them, this would also throw the collapse of the defense adopted by Goldin for other investors the facts about them identical. Circumstances mentioned Goldin was honored to invite as witnesses on his behalf if he wanted to prove their consent to withdraw funds in their accounts - no - way. Remember Goldin testified at the trial of Ms. Christine Samuel and Mr. Yuval leek, one of the owners of the company Rameling, Oaimerto Yigal Fisher, who is owner of the company Rameling, agreement was filed as evidence at trial. The picture is evidence that they were not aware of what he did Goldin their money. The prosecution was not for the Rafi Samuel, son of Ms. Samuel and Mr. Rolf Fischer, director Rameling company to prove that they are not given their consent. What also rightly argued Bath - expert power of the state, that - according to Account opening documents in - hic Rafi was not qualified to operate the account of Samuel and Mrs. Samuel.
Arising from grouped Goldin that the law was convicted of theft by a manager (ie, m -, Cih holding), theft by unauthorized (ie, investors).

VII charges
.88 Indictment is about the fate of their investments and the I.m. Mrs. Joseph S., who both gave Goldin of attorney - power reserved to them in managing activities associated with investment portfolio.
On the basis of four instructions in writing (one signed - by Mr. Ariel, the second on - by Goldin and Mr. Nathan Lurie, and two more on - by two of the company's signature heritage), the bank had prepared four bank checks, and those received over Goldin and use personal needs.
Similarity between the facts in light of the indictment charge the sixth facts that are the essence of transactions (mutual agreement or loan agreement) and provision of Goldin mandate to their account, then all we have said in a hearing regarding Ltihumn sixth charge of various offenses, well here too.
Goldin's claims that no violation existed foundations of theft, saying the bank was not entitled to make the checks because the bank lacked the required signatures on the documents he'd been instructed to prepare the checks, charges were brought in earlier and discussed there. Hence law Goldin was convicted of stealing by theft by a licensed driver.

.89 A matter of punishment. Affair exposed "excelled" sophistication, she Ntmsch long period of time, and extent of thefts carried out by Goldin which comes to millions of shekels. Goldin for his exploits built an extensive and sophisticated accounting system and took various actions Hhh, and it saved the image as a Chef Finansi "and position in -, Cih and the trust Cih investors. To mask his actions forged signatures, documents and records, and open accounts in banks on the names "straw men" and false names, using false passports. Msnhsfo actions, Goldin tried to disrupt the investigation, trying to depose witnesses and eventually fled the country a false passport, returned to the extradition order. These certainly do not justify the penalty imposed on him to ease court Kamma.
More difficult question is whether he should appeal to the state stricter punishment.
Scope of funds in question comes to 24 million New Israeli Shekels (value when the offense). According to the state, always Goldin concealing information about the whereabouts of these funds, while not hiding anything he claims he knew and collaborated with Cih to find money. According to Goldin, was left in his hands money of those convicted of theft, after the arrangement came to him, with Cih (who ruled the validity of - Dean). Following this arrangement brought about two and a half million shekels, after selling his house and his parents' house and took all his savings. More marked on the island - the power of Goldin scholars that arrangement before Cih collected from various sources of money - 15 million shekels (Good Company letter dated 21.9.93).
We do not have to decide fate of controversial regarding the stolen funds, but in each case still can be said that there are fundamental appeal of the state. Did not escape personal circumstances related Goldin: the death of both parents during the trial, after hearing from the outset followed and stood in the courtroom every day (as indicated in the sentence), and problems were discovered with two small children following the arrest, plus that of his wife to handle the baby born to them. Even under these circumstances we must consider, but not all mitigating circumstances together to justify the punishment, inconsistent with the extreme gravity of the acts of the offense, trying Ltstshm escape abroad. The punishment is not consistent with the policy of punishment Its purpose to deter potential offenders to present with "white collar" warning sign on whom I've shared expected to send his money which he is responsible. customary for us, not Nmtzh Once the court appeal.
.90 Sichumm of things, there is, in my opinion, to reject the appeal of the conviction Goldin, except conviction of theft by unauthorized charges 1-5, and conviction in making something Bmirmh charges 6 - 7 appeal on these convictions will be accepted, Goldin acquitted them last offense Cshzichoi nature "technical", as explained decision - this law.
Undermining the state's punishment will be accepted on the lightness in the sentence having Goldin bear to face the ten years, eight of them actually (minus the period determined in carrots - Dino's
Court Kamma) and two on - probation, the - according to the conditions set by the Court of Kamma. The fine will be charged at Goldin eye.

Goldin's appeal to the severity of the punishment - will be postponed.


5129371 Justice T. Or: I agree.

Justice Y. Zamir: I agree.






Decided such decision - Judge's Ruling Goldberg.
Given today, Zain Elul תשנ"ה (11.9.95).