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1. Features of criminal law of Russia and Germany defining criminality and punishability of forgery of documents

According to a position of the Constitutional Court of Germany repeatedly expressed by it in the decisions, interest of the state generality in preservation of its basic values and the law and order can be reached only when the law by means of punishment forbids the defined

148 is social-harmful behaviour.

From the point of view of criminality of forgery of documents it is necessary to have in view of, that the criminal law of Germany, it § 12 UK Germany, divides illegal acts into criminal offences and criminal offences to a formal sign, proceeding from the minimum size of appointed punishment. Act is a crime if for its fulfilment by the law punishment in the form of imprisonment for one year and above is provided; criminal offence - if provides punishment in the form of more short term of imprisonment or the fine. The minimum term of imprisonment is in Germany one month - paragraph (2) § 38 UK Germany. In Russia - two months (ч.2 item 56 UK the Russian Federation).

Crimes are in Germany - forging of documents (§ 267 UK Germany), a fake of technical records (§ 268 UK Germany), a fake of data, significant for proving (§ 269УК Germany). Criminal offences are - a false witnessing by means of other person (§ 271 UK Germany), change of official certificates (§ 273 UK Germany), concealment of documents, change of frontier marks (§ 274 UK Germany), preparation of a fake of official certificates (§ 275 UK Germany), acquisition of false official certificates, documents on the right of stay and vehicles (§ 276, § 276а UK Germany), a fake medical

148 Entscheidungen des Bundesverfassungsgerichts (BVerfGE 51, 324, 343, 88, 203, 257).

Certificates (§ 277 UK Germany), abusing the document proving the identity (§ 281 UK Germany), infringement of a duty of conducting book keeping (§ 283b UK Germany), falsification of election returns and selective documents (§§ 107a, 107b UK Germany), abusing ranks, professional names and signs (§ 132а UK Germany),

Damage of official publications (§ 134 UK Germany), wrongful removal or press damage (§ 136 UK Germany), falsification of certificates of registration (§ 169 UK Germany), false certification at execution of official duties (§ 348 UK Germany).

Made as a part of the organised group: the false

Witnessing by means of other person, change of official certificates, concealment of documents, change of frontier marks, preparation of a fake of official certificates, acquisition of false official certificates, documents on the right of stay and vehicles, the fake of health certificates, abusing the document proving the identity are punished in Germany by imprisonment for the term from one year till ten years, and in less heavy case - from six months till five years. Thereby by the German right fulfilment of forgery of documents in the dangerous form of partnership can be still criminal offence.

According to § 23 UK Germany, attempt at a criminal offence it is punishable always, attempt at criminal offence - when its punishability is directly statutory. Attempt at forgery of documents is punishable, and actions are criminal in a case: forging of documents - paragraph 2 § 267 UK Germany, fakes of technical records - paragraph (4) § 268 UK Germany, fakes of data, significant for proving - paragraph (2) § 269 UK Germany, false certification by means of other person - paragraph (4) § 271 UK Germany, change of official certificates of paragraph (2) § 273 UK Germany, concealment of documents, change of frontier marks - paragraph (2) § 274 UK Germany, stealings of elections - paragraph (2) § 107а UK Germany, falsification of certificates
Civil condition - paragraph (2) § 169 UK Germany, false certification at execution of official duties - paragraph (2 §348 UK Germany.

The German science of criminal law delimits torts of criminal result (Erfolgsdelikte) from action torts (Tatigkeitsdelikte) [148]. It corresponds to the Russian concepts of crimes with material and formal structure. In Germany, as well as to Russia, forgery of documents is a crime with formal structure (Tatigkeitsdelikte).

UK Germany, unlike UK the Russian Federation, contains the general provision forbidding forgery of documents - § 267 UK Germany. Forgery crimes basically are included in Twenty third section UK Germany "Forging of documents". Special kinds of forgeries are included in other sections of Special part UK Germany. About classification in Germany all crimes of forgery to one specific sign to speak it is impossible.

The structure of Special part UK Germany has been generated basically in XIX century. According to prof. T.Vajgenda, «unfortunately, hardly probable it is possible to speak about consecutive statements of crimes in Special part UK Germany, in it it is exclusively heavy to be guided» [149]. The similar judgement has appeared not yesterday. So, hundred years prior to T.Vajgenda, characterising system of the Special part of the Obshchegermansky Criminal code, Frants the Sheet wrote a background, that «with consecutive carrying out of division of acts on groups interferes the concepts of crimes created by the law in force at which formation it is frequent - especially during the newest time - the most elementary rules of legislative technics» [150] are ignored.

According to Frantsa Sheet, as the natural and standard basis for division of the special part of criminal law distinction acts
The legal blessings protected by punishment and mentioned by a crime, that is distinction of those interests which use legal, and criminally-legal protection from the legislation [151].

Special part UK Germany reflects system of values where the hierarchy is built in a kind «the world - public institutes - the person - the property - economic activities - public service». The science of criminal law of Germany recognises that the legal blessings share on individual and universal - «the encroachment for the individual legal blessing directly restrains possibilities of development of the concrete person whereas the encroachment for the universal legal blessing is mediated restrains possibilities of development of all members of a society» [152]. The Criminal law of Germany establishes a priority of universal values before the individual. In Russia the constitutional principle according to which the person, its rights and freedom are the highest value operates. In structure of Special part UK the Russian Federation on the first place is put forward protection of the rights and freedom of the person.

Along with the account of such criterion as the legal blessings, criminal actions are grouped in Special part UK Germany also on a way of fulfilment. So, theft, robbery and extortion harm the property, but are carried in various sections of the Code as robbery and extortion are interfaced to violence application, and theft - is not present.

Frants the Sheet, giving the review of the special part of the German criminal law, considered necessary to distinguish some crimes «not on special object, and on a way of action of the criminal, in particular on the means used by it; assessing this actions by punishment, and creating thus group of original crimes, the state does not erect new, till now not existing or not protected interests on degree of the legal blessings, and only are filled up with an arsenal of the weapon for protection of interests
Already existing and protected, but not sufficiently »[153].

In Germany punishability of a way of committing a crime can influence qualification of actions guilty, on their criminality.

The ideal cumulative offences are provided in UK the Russian Federation and not provided in UK Germany.

According to § 52 UK Germany «Unity of act» if the same action breaks some criminal laws or the same law repeatedly one punishment is appointed only. Actions of the person who given the wrong documentation or has informed in written form incomplete data for reception of the credit, cannot be qualified on signs two acts as a group, that is, for example, as actions of the person using the falsified document (§ 267 UK Germany), and received the credit fraudulently (§ 265b UK Germany). On sense of paragraph (2) § 52 UK Germany in case of infringement of several criminal laws, punishment is defined according to the law providing responsibility for heaviest of them. Thus, the credit deceit punished by imprisonment for the term up to 3th years, has no independent value if way of its fulfilment is use of the false document punished by imprisonment for the term up to 5th years.

On the contrary, in sense of item 17 UK the Russian Federation, cumulative offences admits also one action containing signs of crimes, provided by two articles of the present Code. So the person who forged the document and has made with its help plunder, comes under to punishment under the cumulative offences, the provided items of item 159-1595 UK the Russian Federation and item 327 UK the Russian Federation.

UK Germany, unlike UK the Russian Federation, does not consider as punishable preparation for crimes. Attempt is punished only in the cases directly specified in the Special part. UK Germany provides possibility
Vessels to release the person from punishment or, at own discretion, to commute a penalty, if the executor in view of obvious ignorance did not realise, that attempt or because of an object kind, on injury to which act should be directed, or because of means with which help act should be made, could not lead to act end at all (§ 23 «the Criminal liability for attempt» UK Germany).

According to the Russian right are punishable both attempt at unusable object, and attempt with unusable means. In the doctrine the exception becomes only for ignorant attempt (by sorcery, etc.). So, described in Giovanni Bokachcho's "Decameron" the peasant with impunity feeding in XIV century of the hens with special food that they bore gold coins [154], would avoid and in modern Russia punishment for attempt at counterfeiting.

In difference from Germany, in Russia the criminal liability is established for preparation for any heavy and especially to grave crime, forgery of documents concerns their number on the medical products, made as a part of the organised group (ch. 3 items 3272 UK the Russian Federation), the forgery interfaced to violence or threat of its application and directed on falsification of the uniform state register of legal bodies, the register of owners of securities or system depozitarnogo the account (ch. 3 items 1701 UK the Russian Federation), wrongful delivery or to use of the diploma concerning the goods, works or the services which are not meeting the requirements of safety (ch. 2 items 238 UK the Russian Federation). Other forgeries are carried by the legislator to crimes of small and average weight, preparation for them nenakazuemo.

In Germany the most dangerous preparatory actions to forgery are punished as independent crimes. Criminal offence,
It agree § 275 UK Germany «Preparation of a fake of the diploma», preparation for a fake of official certificates by manufacturing, acquisition for itself and other person, the offer to sale, storage and transfers to other person of plates, forms, printing devices, tipograficheskih a cliche, negatives, matrixes and similar adaptations is, the papers which grade is identical to what is intended for manufacturing of official certificates and is especially protected from a fake, forms of official certificates.

Voluntary refusal of a crime is the basis for clearing of the criminal liability in Russia - ch. 2 items 31 UK the Russian Federation and in Germany - paragraph 1 § 24 UK Germany. Some difference is available in ways of refusal of a crime. So, in Germany voluntary refusal consists in two alternative kinds of action. The first kind, as well as in Russia is a voluntary refusal of crime finishing up to the end. The second, to which UK the Russian Federation does not contain analogue - defeating the law to crime end.

In Russia, as well as in Germany, to forgery crimes the limitation period is applied. Thus a limitation period in Germany under the general rule much longer. In Germany to forgery crimes 10 summer limitation period is applied. To the criminal offences connected with forgery of documents, are applied 5 summer term or 3 summer in case punishment for fulfilment of offence does not provide imprisonment for the term of more than one year. According to item 78 UK the Russian Federation to the majority of crimes of forgery is applied 2 summer limitation period. The person is released from the criminal liability for forgery fulfilment on purpose to hide other crime or to facilitate its execution after the expiration 6 summer terms; for fulfilment of forging of documents on medical products as a part of the organised group - later 10th years.

Forgery legal effect in Russia, as well as in Germany, is first of all punishment of the criminal.

The criminal code of Germany does not contain fixing a sentence, however, punishment is understood as "blaming public reaction» to the crime [155] committed by the person representing measures of the state compulsion, having for an object vchinit guilty external reproach and to cause to a greater or lesser extent a damage to its vital values [156]. In Russia, on sense of item 43 UK the Russian Federation, under punishment is understood the measure of the state compulsion appointed on a sentence vessels; punishment is applied to the person recognised guilty of committing a crime, and consists in the deprivation provided by the Criminal code or restriction of the rights and freedom of this person.

It is necessary to notice, that severity of the punishment provided ch. 3 items 3272 UK the Russian Federation - from 5 till 10th years of imprisonment, are beaten out from the general reaction of the Russian state to forgery crimes. The size of punishment mismatches the sanction for actually illegal manufacture of medical products and medical products - item 2351 UK the Russian Federation which is punished by imprisonment for the term from 5 till 8th years. It is difficult to explain such decision of the legislator. The social danger of manufacturing of medical products without the state control essentially above engineering specifications manufacturing to them. Proceeding from system of Special part UK the Russian Federation population health (gl. 25 UK the Russian Federation) possesses great value, than a management order (gl. 32 UK the Russian Federation). The sanction ch. 3 items 3272 UK the Russian Federation should be brought into accord with sanctions of item 2351 UK the Russian Federation. Change of a disposition of item 2351 UK the Russian Federation can become alternative judgement. It is necessary to include an interdiction for manufacturing in it with a view of use or sale or use obviously forged documents on medical products or medical products (the registration certificate, the certificate or the declaration on conformity, the instruction on application of a medical product or standard, technical and
The operational documentation of the manufacturer (manufacturer) of a medical product). Manufacture of medical products already assumes their manufacturing in the packed kind with an investment of the instruction on application, and their sale is impossible without the registration certificate, the certificate or the declaration on conformity.

For fulfilment of crimes of forgery in Russia on a law in force following kinds of punishments can be applied: the penalty, the debaring to occupy certain posts or to be engaged in certain activity, obligatory works, correctional labour, freedom restriction, and also imprisonment for certain term.

In Germany punishments for crimes and offences of forgery of documents are the fine or imprisonment for the term up to 10th years. Severity of the German law concerning these crimes follows from historical tradition. In the end of XIX century at creation UK Germany in Germany the legal blessing protected from forgeries still was understood as public trust. Forgery was considered as gross violation of public foundations. At the same time, German legal practice testifies that the most widespread kind of punishment for the committed crimes is the fine, only 20 percent of applied punishments are connected with imprisonment [157].

Unlike Russia where the fine can be appointed both in the absolute sum, and in the form of wages or other income condemned for the certain period, in Germany the fine is appointed in day rates, constituting a minimum five and a maximum three hundred sixty day rates. The size of the day rate is defined by court with the account of a personal situation and a financial position guilty. Thus the court starts with the net profit, which condemned has or could have on the average for a day. The minimum rate - one euro and the maximum 30 000 euros
(§ 40 UK Germany). Thus, the size of the penalty which can be appointed condemned in Germany varies in limits from 5 euros to 10,8 million euro.

In Russia confiscation of tools, the equipment or other means of committing a crime of the forgery, belonging convicted on the basis of a court verdict of guilty is applied. The confiscation in the form of money, values and other property, received as a result of crimes of forgery of documents, in Russia is not applied - ch. 1 items 1041 UK the Russian Federation.

In Germany confiscation is applied to the property got as a result of fulfilment of deliberate crimes, specifying the list of such crimes and, hence, is applied and to crimes of forgery of documents - §§ 73-74e UK Germany. Tools, the equipment or other means of committing a crime of the forgery, belonging guilty, and also to the person who promoting on gross negligence committing a crime or has got these subjects in the reprehensible image will be confiscated, knowing about the circumstances supposing their withdrawal - §§ 74-74a UK Germany.

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A source: Sokalsky Boris Borisovich. FORGERY of DOCUMENTS In CRIMINAL LAW of Russia And Germany: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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