First: In the Economical Aspect

Second: In The Legal Aspect

At the level of the phenomenon volume

First: In the Economical Aspect:

1-That half the number of those involved and imprisoned for cases of checks without provision have been exposed to fraud, cheating and deception in commercial transactions which they joined and fell a prey to a group of brokers and usurers.

2-That half those imprisoned for cases of checks without provision have fallen a prey to others'  non-payment of due amounts for them and for which amounts they issued checks depending on the payment of others.

3-That more than half those imprisoned in cases of covered checks were taken to custody to serve imprisonment punishment because they fell victims to the temptations of Company to buy under installment and cashing their purchases and selling them for very less prices to repay their debts and encounter their financial crises. 

4-That more than a third of the numbers of those imprisoned for the cases of checks without provision entered into commercial projects without having financial liquidity, lent amounts of money from usurers for very high interest rates and were unable to pay.

5-That a third of those imprisoned for cases of uncovered checks were mistaken in their estimations and expectations as they were not experienced in financial and commercial matters.

6-That not setting a system for information linking between banks and financial companies led to wasting  the loans money of the involved imprisoned persons as well as wasting the loans money; this led these banks and financial companies to owe too much debts and incur considerable amounts of money.

7-That the reluctance of banks and financial companies to support the orientation towards lifting the penal protection over the check will lead the customers lose confidence in it and will hinder one of the modes of payment.

8-That the banks and financial institutions supporting lifting protection over the check will lead the banks and financial institutions to lose profits and commission as well as the long-term decline of bank profits.

9-That the banks not setting restrictions and regulations determining the correct use of checks will give usurers and tamperers to cause harm to the conditions of the market, business and money, which will negatively be reflected on the performance of banks, causing their profits to decline and, as a result, a falloff in the values of their traded shares and stocks.

10- That the countries of Europe, including Germany, France, Britain , the European Community countries in general and the United States as a country of high economic efficiency no longer incriminate check or attach a penal protection to it.

11- Going on surrounding the check with penal protection will naturally lead to hindering economic growth and activity in Kuwait. Meanwhile, the neighboring Arabian Gulf countries follow the most top-notch developed systems and techniques to facilitate financial transactions give the economics of these countries an impetus towards growth and prosperity. This is in addition to the fact that all countries have made quick and advanced steps to reconsider their respective legislations related to the economic activity so as to catch up with the economic changes that are taking place all over the world and keep up with globalization the impacts of which will be reflected on all the aspects of our life, especially the economic aspect.

12- We should not remain mere bystanders before the provision of Article 237 of Trade Law after it has been discovered by practical enforcement that they both have become the cornerstone in bringing about economic, social and security problems inside society and the continuous enforcement thereof will load heavy burdens on the State's budget. Therefore, they must be annulled as is good for the interest of the individual and society, which interest is the legislator's goal to be achieved out of enacting laws.

Second: In the Legal Aspect:

There are several critiques leveled against Article 237 of Penal Act and Article 554 of Trade Law, which are as follows:

1-Actual practice proved, undoubtedly, that setting more severe punishment in uncovered check cases and changing it from a misdemeanor into a felony has not achieved the goal aspired by the legislator, that is, minimizing uncovered check cases or achieving deterrence. This assures the ongoing rise in crimes of checks, according to statistics that refer to the fact that crimes of checks represent a third of the number of crimes annually. This means that deterrence through applying more severe punishment has not achieved the required result as denoted from the perspective of another aspect to put an end to such a negative phenomenon.

2-The provision of Article stipulates that the check is a mode of payment; however, the reality of the condition proves that punishment enacted in respect of check crimes as mode of guarantee. This remark is considered a main reason in bringing about a loophole in the provision of this legal stipulation. This leads to the express contradiction in the provision of the Article. It also leads to the express contradiction between the goal of the legislator and the abuse of check as a mode of payment. The legislator's goal is not achieved in using the check as a mode of payment except by lifting the penal protection over the check in guarantee of not using the check as a mode of guarantee.

3-Actual practice proved that the tamperers who circumvent the law did not use the check as a mode of guarantee only; rather, they resorted to tampering in the maturity date and before the drawer can secure the required balance at the right time with what assures that he has used the check as a mode of guarantee, which requires that penal protection be lifted over him so that the check might not be abused in such a way.

4-That the provision of Article 237 and Article 554, Trade, did not determine an exact time frame that binds those transacting in it to comply with this frame in such a way that gives the opportunity for blackmailing the drawer by the beneficiary; rather, it paved the way for using the check as weapon that can be used at any time without having any restrictions or limitations determined by any legal provision especially in the cases of the payable checks that might have a long maturity term.

5-That despite the various mode of payment of financial commitments among transactors, which the banks guarantees by virtue executed by both the drawer and the beneficiary, the check remained the only mode surrounded by penal protection. The objective view requires dealing with a check like any other mode of payment. The continuity of the provision of Article 237 of Penal Act and Article 554 of Trade Law remains the reason for bringing about legal problems among transactors. It is also regarded as a main reason in creating other problems in society. All this can be avoided through lifting penal protection over the check and regarding it like any other mode to be used by transactors without having any negative effects whether at the financial and commercial level, at the legal level or at the social level.

6-Annulling penal protection of the check will lead transactors to use other modern modes of payment and will put an end to the negative effects of the phenomenon of uncovered checks. On the other hand, it will prevent those who tamper the check and usurers who abuse the check to go back with the check to its right path, i.e. as a mode of payment rather than as a mode of guarantee.

At the Level of the Phenomenon Volume:

1- That official statistics prove that in 2001, a number of 4614 judiciary judgements of imprisonment were issued for persons involved in cases of uncovered checks. The total number of those who had imprisonment rulings issued against them in such cases without serving them reached 3312 rulings.

2- That official statistics prove that individuals and imprisoned ones in such cases do not represent the real volume of the phenomenon; rather, they represent only a part of it.

3- That the official statistics prove that there is an ongoing rise in the case of uncovered checks to the extent that they represent a third of the number of crimes annually.

4- That the real volume of the phenomenon does not mean the individuals who served imprisonment rulings or those who did not serve the same or the volume occupied by crimes of checks among other crimes; rather, the real volume of this negative phenomenon is represented in the individuals related to the involved imprisoned person.