Concept and Definition of Intellectual Forgery of Documents
Intellectual document forgery is a special manifestation of document forgery under German criminal law and refers to the drafting of a document with false content by a person authorized to issue it. In contrast to physical document forgery, no externally recognizable false document is produced; rather, a document is provided with factually incorrect information. The term is particularly relevant in the context of official documents and in connection with public officials authorized to issue documents.
Legal Foundations
Areas of Regulation in the German Criminal Code (StGB)
Classical document forgery is regulated in Section 267 StGB. Intellectual document forgery, on the other hand, is not expressly listed as a separate offense in this provision but is primarily defined by case law and legal commentaries and covered by other statutes, such as Section 348 StGB (False Certification in Office).
Section 267 StGB: Document Forgery
Section 267 StGB protects the security and reliability of legal transactions involving documents. Under this provision, whoever, with intent to deceive in legal transactions, produces a false document, falsifies a genuine document, or uses a false or falsified document, is liable to prosecution. Intellectual false certification only falls under this if the document as a whole is inauthentic, which is not the case with a document originating from the actual issuer.
Section 348 StGB: False Certification in Office
Section 348 StGB criminalizes the recording of factually incorrect information by a specially obligated public official or by persons authorized to create public documents. Official false certification is therefore the core offense of intellectual document forgery regarding public documents.
Intellectual vs. Physical Document Forgery
- Physical Document Forgery: Creation or alteration of a document so that the impression is given that it originates from another person or was issued in a different context.
- Intellectual Document Forgery: The document genuinely originates from the issuer but contains factually incorrect statements regarding legally relevant facts.
Requirements and Legal Elements
Actus Reus (Committing the Offense)
In intellectual document forgery, the act consists of knowingly and with awareness of the illegality including false facts in a document by a person authorized to issue it. The object of the offense is regularly a public, often also a private document.
False Certification of Public Law Documents
Among the protected documents are especially public documents, which, under Sections 415 and 418 ZPO (rules of evidence in civil procedure), possess increased evidentiary value. Intellectual false certification exists, for example, if an authority deliberately records incorrect information in the protocol of an administrative act.
Group of Perpetrators
The specific group of perpetrators is limited for public documents to public officials or persons authorized to certify (§ 11 para. 1 no. 2 StGB). For private documents, liability under § 267 StGB only occurs as an exception, and only if additional manipulations are present.
Subjective Elements
Intent is required, that is, knowledge and will to falsely certify in content. Negligent false certification is only punishable if a specific statutory provision so provides, such as Section 349 StGB (negligent false certification in office).
Distinctions and Special Cases
Distinction from the Written Lie
Not every factually incorrect statement in a document constitutes intellectual document forgery. Criminal false certification only exists if, due to the form and content of the document, its public evidential value is invoked, thereby endangering legal transactions. Private false statements in ordinary correspondence are not punishable under forgery statutes.
Distinction from False Documents
A document is false if it does not originate from the person who appears to be its issuer. In contrast, in intellectual document forgery, the document is genuine but its content is false.
Practical Issues
Intellectual document forgery is of particular relevance with notarized documents, civil status certificates, administrative acts, and criminal investigation documents. The potential for abuse occurs, for example, when authorities issue certificates or attestations, or by manipulation of examination records or expert reports.
Legal Consequences and Penalties
Criminal liability for intellectual document forgery depends on the relevant offense, particularly Section 348 StGB (False Certification in Office). Penalties may include imprisonment of up to five years or a fine. In less serious cases or in cases of negligence, the penalties are correspondingly reduced.
Significance in the Legal System
The prosecution of intellectual document forgery serves to protect trust in the probative value of public documents and the proper, truthful documentation of legally relevant facts. Sanctioning promotes the integrity of legally binding certification practices and makes an essential contribution to legal certainty.
References
- Joecks, W.: Münchener Kommentar zum StGB, §§ 267-358.
- Roxin, C.: Strafrecht BT II, § 31.
- Fischer, T.: Strafgesetzbuch und Nebengesetze.
This comprehensive presentation demonstrates the multifaceted legal aspects of intellectual document forgery and makes an important contribution to understanding this concept within the framework of German criminal law.
Frequently Asked Questions
What are the differences between intellectual and material document forgery in the legal context?
In the case of intellectual document forgery, there is a genuine, unchanged document—meaning the document actually originates from the issuer—but the content of the document is untrue. The issuer therefore makes a statement that is factually incorrect, even though the document was formally correctly created. This form of forgery is fundamentally different from material document forgery, in which the document is either altered, forged, or backdated, thus creating the impression of another issuer or a different issuance date. In the legal context, intellectual document forgery does not fall under Section 267 StGB (Criminal Code), which relates to material document forgery; rather, other criminal offenses—such as false certification or indirect false certification under Sections 348 et seq. StGB—may apply, depending on the circumstances. In particular, it should be noted from a legal standpoint that a mere written lie outside of public documents is generally not punishable; only in the case of so-called particularly credible documents or where particularly obligated officials are involved does criminal protection intensify.
In which cases is intellectual document forgery punishable?
Intellectual document forgery is only punishable if the legislator has provided special criminal protection for the relevant type of document or issuer. This is particularly relevant for public documents and certifications by officials. The applicable offenses are, for example, false certification in office (Section 348 StGB), false certification of public documents (Section 271 StGB), and indirect false certification (Section 271 para. 2 StGB). Criminal liability typically arises when public officials or persons authorized to provide public certification knowingly attest to factually incorrect circumstances, or when third parties induce them to do so by deception. On the other hand, a private, factually untrue confirmation—for example, a false receipt—remains generally unpunished, unless special circumstances are present, such as issuing a specially protected medical certificate (Section 278 StGB).
What is the significance of the term “public document” in connection with intellectual document forgery?
The term public document is of great importance in the context of intellectual document forgery because criminal law provides increased protection for public documents. Public documents are those created by a person specially authorized for the purpose (public officials or persons authorized to give public certification, such as notaries or registrars) within their area of responsibility. For these types of documents, the law includes provisions that protect not only their formal authenticity but also their factual correctness (§§ 271, 348 StGB) under criminal law. This means that a violation of the duty of truthfulness with public documents can regularly lead to criminal liability for intellectual document forgery, even if the document is otherwise formally correct.
What role does intent play in intellectual document forgery?
In contrast to negligent false entries, intent is always required for criminal liability in the case of intellectual document forgery. This means the perpetrator must knowingly and deliberately attest to, or have attested, incorrect content. Intentional action includes both awareness of the falsity of the certified matter and the will to present this falsity to third parties as the truth. A mere mistake or negligent statement generally results only in disciplinary or civil consequences, not criminal liability under the provisions for intellectual document forgery.
Are there exceptions where a document with incorrect content is not prosecuted despite criminal liability?
Yes, German law does provide—also in the sphere of intellectual document forgery—so-called grounds for cancellation or exemption from punishment. This mainly involves cases in which the perpetrator discloses the facts in time or ensures the correction of the false document before any harm is done or a third party relies on its accuracy. In individual cases, if the degree of fault is particularly low, punishment may also be waived (§ 60 StGB). However, this is the exception and depends on the circumstances of the individual case.
How do the offenses of indirect and direct intellectual document forgery differ?
In direct intellectual document forgery, the issuer himself commits the factually false certification, for example, a public official who knowingly records an untrue fact in a protocol. Indirect intellectual document forgery (Section 271 para. 1 StGB), on the other hand, exists if the perpetrator induces a person authorized to give public certification—by deception or misleading information—to issue a document that is factually incorrect. As a result, criminal liability has been extended to persons who effectively ‘procure’ the false document, even if they are not formally the issuer themselves.
What are the civil law consequences of intellectual document forgery?
In civil law, an intellectually forged document may have various consequences: under Section 125 BGB (German Civil Code), it is generally void if it constitutes a material requirement for the conclusion of a legal transaction. Also, submitting such a document may constitute a deceptive act giving rise to damages or recovery claims (Section 823 BGB). Furthermore, the withdrawal or challenge of official or administrative decisions may be possible if they are based substantially on a document with false content. Such consequences, however, depend on the circumstances of each individual case and the significance of the document for the relevant legal transaction.
