Indirect false certification
The indirect false certification is a criminal offense under German criminal law . It is regulated in Section 271 of the Criminal Code. It is systematically in the area of document fraud . The regulation protects legal transactions not from false, but from genuine and thus more conclusive but untrue public documents. At the same time, the functionality of the certification bodies is protected.
Classification in the overall system
Anyone who creates a public document himself or falsifies an existing public document is liable to prosecution for falsification of documents , but there is a criminal liability gap if a perpetrator exerts such influence on a public official that he unintentionally creates a genuine, but incorrectly substantive document, such as the so-called . Slip governorship . If a public official deliberately creates a false public document, no indirect perpetration or complicity can be considered because of the character of an official offense, but incitement or aiding and abetting , but the punishment according to § 28 I StGB is to be mitigated.
Section 271 of the Criminal Code is intended to close the gap that arises from the fact that the false certification in the office is a real official offense according to Section 348 of the Criminal Code, i.e. the perpetrator must be a public official. If a public official acts unintentionally in the event of a false public authentication according to § 348 StGB, a third party initiating the authentication would be exempt from punishment because there would be a lack of a main offense for incitement according to § 26 StGB (limited accessority). Indirect perpetration according to § 25 I Alt. 1 StGB fails because the third party does not hold office. In such situations, Section 271 of the Criminal Code may be fulfilled.
Objects of crime
The object of the offense is a public document within the meaning of Section 415 of the German Code of Civil Procedure, i.e. a document that has been drawn up by a public authority within its official powers, within the scope of its jurisdiction, and which can thus provide evidential value to anyone. This document must be untrue, i.e. record circumstances that did not happen that way. The increased evidential value of the public document must also refer to this untrue circumstance. If there is no express provision, what information this is in detail can be found in the statutory provisions that are relevant for the establishment and purpose of the document.
The certificate of tolerance according to § 60a Abs. 4 AufenthG is in any case not a public document in terms of § 271 StGB with regard to personal information if the administrative authority includes the note in the document that the personal information is based on the foreigner's own information.
Acts
The perpetrator must somehow cause the document to be produced untrue. However, acts that represent participation (aiding and abetting, incitement) in the offense of Section 348 are not included, as these are already covered by the participation criminality . Also not covered is the case that a fact occurs through deception, which is then certified as happened.
Subjective fact
In the subjective offense, conditional intent with regard to all objective elements of the offense is sufficient, but the offender must have the will to want to deceive legal transactions.
Web links
Individual evidence
- ↑ BGH, decision of May 2, 2001 - 2 StR 149/01
- ^ BGH, decision of October 30, 2008 - 3 StR 156/08
- ↑ Magdalena Dollinger: Obtaining a certificate of tolerance and assistance for unauthorized residence to BGH - 5 StR 266/09, NJW 2010, 248
- ↑ OLG Karlsruhe, decision of January 27, 2012 - Az. 3 (4) Ss 561/11; 3 (4) Ss 561/11 - AK 238/11
