FORGERY AND USE OF FORGERY
LexInter | June 2, 2008 | 0 Comments

FORGERY AND USE OF FORGERY

THE FALSE DOCUMENT

The Articles 441-1  to 441-6 of the Criminal Code deals with the false document. The Penal Code distinguishes the forgery, which can be called ordinary forgery, from certain specific forgery.

The ordinary forgery

The ordinary forgery is the successor of the old forgery in private, commercial or bank writing.

It is provided for and punished by article 441-1 of the Penal Code

Definition of false

The Article 441-1  provides the following definition of the false:

Any fraudulent alteration of the truth, likely to cause prejudice and accomplished by any means whatsoever, in writing or any other medium of expression of thought which has as its object or which may have the effect of, constitutes a falsehood . establish proof of a right or a fact having legal consequences.

The five constituent elements of the forgery are therefore the following

  1. A document

Forgery is the falsification of a writing. This can be all written, whether it is handwritten, typed or printed. The term “medium of expression of thought” is intended to extend the application of the text to all modern forms of materialization of thought, computer diskette or other computer medium, films, etc.

  1. worth title

Forgery is reprehensible if the document has legal value, if its object or effect is to prove a right.

  1. containing an alteration of the truth

The alteration of truth is the material element of truth.

Shape of alteration

The alteration can be a forged signature or forgery of handwriting by imitation, the assumption of people (false claim that a person was present), the finding of false facts to be true, the fabrication of false conventions

False material

False material is the making of a document or its alteration. The proof of the false material is done by expertise.

False intellectual

The false intellectual is the writing of a document whose sayings are contrary to the truth, which affirms facts which are inaccurate. The false intellectual is characterized by lies or omissions. It may result from a simulation

Object of the alteration

The alteration is punishable if it relates to the substance of the act, and not simply to an ancillary or secondary matter.

  1. causing harm

The concept of prejudice is understood broadly. It can be current, possible or possible.

In certain acts the damage is presumed: “the prejudicial character has not been noted if it results from the very nature of the forged document” (Cass.crim. May 10, 1989). In an authentic instrument, in the event of fabrication of a false document, “it necessarily results from the attack on public faith and social order” (Cass. Crim. May 24, 2000). This is the case with forgeries which undermine public confidence and social order, it is not only forgeries in public or authentic writing, but also commercial and accounting entries, registers, etc.

When the damage does not result from the nature of the act, the damage must be proven. This is the case for simple writings or missive letters.

  1. with guilty intent

The penal code requiring ” fraudulent ” alteration of culpable intent is necessary. The false is only established if there is an awareness of the alteration of the truth (Cass. Crim. 3 May 1995)

False individuals

False individuals are punished by harsher penalties than that of ordinary forgery

The forgery in an administrative document

The element specific to this offense, the penalty of which is provided for in article 441-2, is the fact that the document is issued by an administrative authority.

 The forgery committed in a document issued by a public administration for the purpose of establishing a right, an identity or a capacity or to grant an authorization is punished by five years of imprisonment and a 75,000 euros fine.
The use of such a document is punishable by the same penalties.
The penalties are increased to seven years’ imprisonment and a 
fine of 100,000 euros when forgery or the use of forgery is committed:
1 ° Either by a person holding public authority or entrusted with a public service mission acting in the exercise of its functions;
2 ° Either in the usual way;
3 ° Either for the purpose of facilitating the commission of a crime or of procuring impunity for its author.

Fraudulent possession of such a document is punished by two years’ imprisonment and a fine of 30,000 euros by article 441-3 . The penalty is increased to five years’ imprisonment and a fine of 75,000 euros in the event of fraudulent possession of several false documents. (article 441-3 )

Various offenses are derived from debt offense.

Administrative document fraudulently procured to others

A derivative offense constituting an aggravated offense is the fact of fraudulently procuring one of these documents to others ( article 441-5 )

Fraudulently procuring a document issued by a public administration for the purpose of establishing a right, identity or capacity or of granting an authorization to others is punishable by five years’ imprisonment and a fine of € 75,000.
The penalties are increased to seven years’ imprisonment and a 
fine of 225,000 euros when the offense is committed:
1 ° Either by a person holding public authority or entrusted with a public service mission acting in the exercise of its functions;
2 ° Either in the usual way;
3 ° Either for the purpose of facilitating the commission of a crime or of procuring impunity for its perpetrator.

Fraudulent obtaining of a document to establish a right, identity, capacity or authorization

Two other derivative offenses consist of obtaining one of these documents ( article 441-6 para. 1) and providing a false statement with a view to obtaining a public administration or a similar body an undue advantage ( article 441-6 al. 2)

The fact of being unduly issued by a public administration or by a body entrusted with a public service mission, by any fraudulent means whatsoever, a document intended to establish a right, an identity or a capacity or to grant an authorization is punished by two years’ imprisonment and a fine of € 30,000.
The same penalties apply to providing a false statement with a view to obtaining from a public administration or a body responsible for a public service mission an allowance, payment or undue advantage.  article 441-6

Wrong in public writing

Article 441-4 of the penal code punishes forgery ” committed in a public or authentic document or in a recording ordered by the public authority”. The use of forgery is assimilated to forgery

Public records

These are government writings, court writings (judgments), arbitral awards, summons or acts of appeal or cassation, etc.

Authentic scriptures

These are all acts drawn up by public officials (notaries, bailiffs, auctioneers, etc.

The false committed in public writing is punished by ten years of imprisonment and a 150,000 euros fine. The use of forgery is punishable by the same penalties.
The penalties are increased to fifteen years of criminal imprisonment and a fine of € 250,000 when the forgery or the use of forgery is committed by a person holding public authority or entrusted with a public service mission acting in the ‘exercise of its functions or its mission. (article  441-4 )

FALSE ATTESTATIONS OR CERTIFICATES

,

 Articles 441-7 to 449 cover on the one hand the establishment or use of false certificates and on the other hand the issuance of false certificates by corruption

Preparation or use of false attestations or certificates

The offense is constituted under the terms of article 441-7 by the fact    1 ° of drawing up an attestation or a certificate stating materially inaccurate facts;    2 ° To falsify an attestation or a certificate which is originally sincere;    3 ° To make use of an inaccurate or falsified attestation or certificate.

 

The penalties are one year’s imprisonment and a fine of € 15,000.
The penalties are increased to three years’ imprisonment and a fine of € 45,000 when the offense is committed with a view to damaging the public treasury or the patrimony of others.

Issuance of false attestations or certifications by corruption

The offense is constituted under the terms of article 441-8 by the active or passive corruption of a person acting in the exercise of his functions so that he draws up an attestation or a certificate stating inaccurate facts.

There is active corruption when a person acting in the exercise of his profession, solicits or accepts, directly or indirectly, offers, promises, gifts, gifts or advantages of any kind to establish a certificate or certificate showing materially inaccurate facts. .

There is passive corruption when a person gives in to the solicitations provided for in the previous paragraph or uses assault or threats or proposes, directly or indirectly, offers, promises, gifts, gifts or any advantages to obtain a person acting in the practice of his profession to draw up an attestation or a certificate stating inaccurate facts.

The penalties are two years imprisonment and a fine of 75,000 euros.

The penalty is increased to five years’ imprisonment and a fine of 100,000 euros when the person referred to in the first two paragraphs exercises a medical or health profession and the certificate stating inaccurate facts conceals or falsely certifies the existence of ‘disease, infirmity or state of pregnancy, or provides false information on the origin of an illness or infirmity or on the cause of death.

Attempt

The attempted offenses are punished with the same penalties. Article 441-9

Additional penalties

 The natural persons guilty of the crimes and misdemeanors provided for in this chapter also incur the following penalties:
1 ° The prohibition of civic, civil and family rights according to the modalities provided for in article 131-26;
2 ° Prohibition from exercising a public function or an activity of a professional or social nature in accordance with the terms set out in article 131-27;
3 ° Exclusion from public contracts;
4 ° The confiscation of the thing which was used or was intended to commit the offense or of the thing which is the product of it, with the exception of objects susceptible of restitution. Article 441-10

Prohibition of territory

The ban from French territory may be pronounced under the conditions provided for by article 131-30, either definitively or for a period of ten years at most, against any foreigner guilty of one of the offenses. defined in this chapter. Article 441-11

Liability of legal persons

Legal persons may be declared criminally responsible, under the conditions provided for in article 121-2, for the offenses defined in this chapter.
The penalties incurred by legal persons are:
1 ° The fine, in accordance with the terms set out in article 131-38;
2 ° The penalties mentioned in article 131-39.
The prohibition mentioned in 2 ° of article 131-39 relates to the activity in the exercise of which or on the occasion of the exercise of which the offense was committed. Article 441-12

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