Falsification of civil status
A falsification of personal status is the bringing about of an error through deception about the family law relationships of a person to others and / or his name as the basis of rights and legal relationships.
history
Roman law already knew the falsification of civil status in the form of pushing a child as a suppositio partus . The offense was decisively shaped by the état civil des personnes of French law.
Germany
In Germany, falsification of personal status according to Section 169 of the Criminal Code (StGB) a criminal offense , namely an offense for which the attempt is punishable. In the major criminal law reform, the offense was decisively restricted by the fact that essentially only actions relating to the civil status authorities are relevant. Actions in the private sphere, such as the designation of the foster daughter as a biological child to acquaintances and friends or the specification of the beloved as a wife at the hotel reception, have been removed from the criminal law provision.
Legal interest
The legal asset of falsifying personal status is the correct determination of a person's family law relationships. Basically, the general interest is used. Also protected is the individual's interest in knowing his true personal status and having it registered.
Objective acts
The offense has three different possible offenses. As a special case of incorrect information, which is not given to a civil status authority, the child was left with the slip. This is justified with references to legal history (see above) and the special need for protection of infants and toddlers.
Slipping a child under
Pushing a child ( cuckoo child ) is an act that leads to the child appearing to the environment as a descendant of a woman other than the mother. However, it is not necessary for the mother to regard the child as her own. Therefore, the mother can impute the strange child to herself. A classic example is the replacement of the heir of the throne and title, who died in childbirth, with a healthy citizen child. The unwritten factual feature is the specific risk of an incorrect entry in the civil status books . Only a child who does not yet have an accurate idea of his or her civil status can be fooled. The concealment of the fact of conception in adultery by the mother of the child from her husband is not a child's misappropriation and thus no criminal falsification of civil status. On the one hand, the parentage is not pretended to be from another mother and, on the other hand, no false entries are made in the civil status register because the mother's husband is legally the father in accordance with Section 1592 No. 1 BGB.
Incorrect information
Information
Information on the status of persons makes, who related to civil law, family law relationships one person to another, so for example, sex, descent , adoption , family or marital status (entering into the marriage or civil partnership , divorce manifests, etc.). This does not include, for example, name or nationality , because although these characteristics relate to a specific person, they do not describe a relationship between this person and another person.
The statement made by the perpetrator must relate to the marital status of another person, regardless of whether they are still alive or have already died. Information about one's own civil status is not covered by the criminal provision.
Not correct
The information is false if the alleged civil status does not match the real one. In principle, the legal civil status is decisive, not the actual one. It is therefore a criminal offense if, when a child is born whose parents are not married to each other, a man who is not the father is the father. On the other hand, anyone who registers a child who is legally considered to be a child of the spouses but conceived in adultery as a legitimate child acts with impunity .
Competent authority
The information must be given to an authority responsible for keeping the civil status registers (the registry office ) or an authority responsible for establishing civil status. In particular, these are also the courts that decide on the determination of paternity . It must always be a matter of determining the civil status with effect for everyone. The police during interrogations, the district military replacement office during the draft or the social welfare offices when examining the requirements for social assistance are not active in determining the civil status in this sense.
Suppression of True Facts
A suppression of the civil status exists if the competent authority is prevented from correctly assessing the civil status by acts other than false information or by omission. This is the case, for example, when the mother, contrary to the truth, claims in the paternity trial that she also had intercourse with men other than the father during the legal conception time. Suppression by omission is committed, for example, by someone who, contrary to an obligation to notify under the Personal Status Act (PStG), fails to report a birth or death to the registry office.
Subjective fact
From a subjective point of view, the act presupposes intent , with contingent intent being sufficient. The motives for the perpetrator to act, whether he is striving for his own enrichment, is irrelevant.
illegality
The consent of the person concerned is criminally irrelevant because the falsification of civil status is not a disposition offense, i.e. not a personal legal asset of the child that the child could dispose of ("dispose of"), but only the public interest in the material accuracy of the civil status registers is protected.
Factual
In the German criminal justice system, the offense is of completely subordinate importance. The number of annual procedures can be counted on one hand. As is always the case with such statistical analyzes, the question arises whether this is because the criminal provision is fulfilling its function, or whether it is simply superfluous, or whether the crimes committed are simply not exposed.
Individual cases
In contrast to its actual meaning, the penal provision has gained a lot of space in the scientific discussion in recent years due to new actual phenomena in connection with parentage and birth.
Anonymous birth
In the so-called anonymous birth, the hospital or maternity home enables the mother not to have to provide her personal details. The criminal liability of the mother, who as a parent with custody is fundamentally obliged according to § 19 S. 1 No. 1 PStG to report the birth personally to the registry office, by suppressing the civil status was not discussed. The question of whether the other parties involved committed a criminal offense was answered inconsistently. Starting point is the current in the case of prevention of the parents obligation of physicians and midwife as one present at the birth what has been person § 19. 1 No. 2 PStG and the carrier of the device according to § 20 PStG for display to the birth registry office . Some argued that there was a lack of resolution, because those involved hoped that the mother would change her mind, confess to motherhood and take the child into her own care. The others were convinced that those involved would regularly include the registry office's failure to establish maternity in their resolution. With the law on the expansion of assistance for pregnant women and the regulation of confidential birth of August 28, 2013, the legislature introduced a special regulation for anonymous birth due to these criminal problems: If the mother expresses a request to an advice center, the registry office must only the mother's pseudonym will be given. The mother's data are then only stored. The child can inspect it when it is 16 years of age.
Baby hatch
In the criminal law literature there is broad agreement that the mother who places her child in a baby flap also suppresses the child's civil status, since she is notifiable and the placing in the baby flap with the subsequent removal in any case determines the child's civil status endangered. It is of course always necessary to check whether the plight of such mothers justifies the act or at least excuses it.
In the literature, however, the assessment of the behavior of those who provide a baby hatch is extremely controversial. It is true that he himself cannot incorrectly state or suppress the civil status because he simply does not know it. It is questionable, however, whether he indeed to the mother through the establishment of Babyklappe aid guaranteed. It is sometimes argued that the device only serves to protect the child and that the mother's undetected escape is not supported. Others doubt whether the operator does not expect this escape after all and accepts it approvingly in the sense of a contingent resolution.
False acknowledgment of paternity
According to the wording of the law, the acknowledgment of paternity by a man who knows that he did not conceive the child biologically is a false statement about the civil status of the child to the registry office.
Since, however, according to German family law, when recognizing the paternity of a child whose parents are not married, it does not matter whether the man recognizing paternity is really the biological father of the child, this provision is probably the predominant opinion in criminal law literature by teleological reduction not applied to false statements in the acknowledgment of paternity. This restriction should also apply if the man has been deceived by the child's mother, i.e. if she would commit a falsification of civil status according to the principles of indirect perpetration , if she designates the biological non-father to recognize paternity by deception.
The counter-opinion, which is probably in the minority, points out that the false acknowledgment of paternity is quite often used as cold adoption when the husband contradicts the truth of the child of an illegitimate mother from a developing country that has been brought into the country from abroad as his own to the registry office and the subsequent adoption by the wife is only a matter of form. Circumventing the protective provisions for adoption is contrary to the limitation of the facts and even requires criminal liability.
Competitions with other criminal provisions
Falsification of civil status often competes with indirect false certification ( Section 271 of the Criminal Code), because the civil registrar's actions are caused to publicly document a false fact. In this case, there is a specialty in the offense of incorrect information and suppression , so that the milder punishment provided for in Section 169 of the Criminal Code must be applied (privilege). In the status process, there is usually a unity in the act of wrongful information and suppression .
literature
- Jürgen Spindler: Certification of anonymous births, children from baby hatches and people with uncertain civil status. The registry office 2012, 97.
- Winfried Hassemer , Lutz Eidam : Baby flaps and the Basic Law. Using the example of the “Findelbaby” project in Hamburg. Nomos, Baden-Baden 2011. ISBN 978-3-8329-6945-5
- Alexander Teubel: Born and given away. Legal analysis of baby hatches and anonymous birth. Duncker & Humblot, Berlin 2009. ISBN 978-3-428-53068-7
- Thorsten Kingreen: Das Kind X: Constitutional issues of anonymous child transfer . Critical quarterly journal for legislation and jurisprudence 2009, 88.
- Stephan Neuheuser: Crimes against the so-called baby hatch. Journal for Child Law and Youth Welfare 2006, 458.
- Cornelia Mielitz: Anonymous delivery of children. Baby hatch, anonymous handover and anonymous birth between defense and protection rights . Nomos, Baden-Baden 2005. ISBN 3-8329-1850-7
- Stephan Neuheusser: Criminal law evaluation of so-called baby flaps in practice. Criminology 2005, 738.
- Jürgen Moysich: Baby hatch and anonymous birth. Journal of Legal Policy 2003, 217.
- Kyrill-A. Black: Legal aspects of “baby hatch” and “anonymous birth”. The registry office 2003, 33.
- Stephan Neuheusser: Baby hatch and anonymous birth. Journal of Legal Policy 2003, 216.
- Ingo Mittenzwei , Susanne Benöhr, Iris A Muth: Pro & Contra - baby hatch and anonymous birth. Journal of Legal Policy 2002, 452.
- Stephan Neuheusser: Does giving away a newborn in a baby hatch the initial suspicion of a criminal act? New Journal for Criminal Law 2001, 175.
- Michael Bärlein, Stephan Rixen: Baby cradles - An auxiliary concept of its own - Criminal law risks of setting up “baby cradles”. Criminology 2001, 54.
- M. Susanne Benöhr, Iris A. Muth: “ Baby flap” and “anonymous birth” - in the conflict between providing assistance and breaking the law. Critical Justice 2001, 405.
Individual evidence
- ↑ OLG Hamm, judgment of August 26, 1988 - 5 Ss 778/87, New Collection of Decisions for Criminal Law (NStE) No. 1 on § 169 StGB.
- ^ Friedrich-Christian Schroeder: Family law and criminal law . In: FamRZ . 2014, p. 1745, 1748 .
- ↑ From the case law cf. on the one hand OLG Cologne, decision of December 7, 1973 - 16 Wx 109/73, Neue Juristische Wochenschrift (NJW) 1974, 953; on the other hand, OLG Hamm, judgment of November 20, 2007, 1 Ss 58/07, Neue Juristische Wochenschrift (NJW) 2008, 1240.
