Jean-Claude Renard Legisquadra | Bruselas-Bélgica
Three cumulative conditions are necessary to characterize the infringing materiality of the written counterfeit.
Written counterfeiting is a criminal offence that relates to counterfeit written to disguise the will of the author of the document. It is said that the false is "intellectual" when it results from the construction of the spirit that alters the truth without falsifying a script.
Written counterfeiting sanctions behaviour and is frequently found in practice.
Take the example of Mr. X, manager and sole partner of a financially struggling business venture. Mr. X wishes to continue managing the company, but fears that his management responsibility will be compromised in the event of bankruptcy. There is a great temptation for Mr. X to sell his shares to a third party, Mr. Y, who would agree to be appointed manager instead of Mr. X for a payment of € 2,000, while Mr. X would still manage, in the facts, the society.
Mr. X then summons an Extraordinary General Meeting declaring the resignation of his mandate as manager and the appointment of Mr. Y. The writing of the minutes that approve the resignation of Mr. X and the appointment of the "straw man" is constitutive of an "intellectual" written counterfeit.
In effect, the Penal Code, together with the jurisprudence, imposes the fulfilment of three cumulative conditions that characterize the materiality of the counterfeit in writing:
- the alteration of the truth, by one of the ways provided by law,
- in relation to a document protected by law,
- and causing harm or that may cause harm.
The alteration of the truth results from the writing of an act that expresses an apparent change of manager, when in fact, Mr. X still manages the company. The writing protected by law is the act of A.G. who enjoys public trust. The act is likely to cause damage to third parties, since the actual manager, Mr. X is the one who assumes his responsibility for the management acts carried out on behalf of the company and is hidden by the interposition of another person, Mr. Y, insolvent and often cannot be located.
Purpose of damaging or fraudulent
In addition to the material element, the accusing party must demonstrate that Mr. X, at the time of the forgery, was motivated by a purpose to harm (will to harm a natural or legal person) or a fraudulent intention (willingness to provide an illegal advantage, that is, one that would not have been obtained without counterfeiting). This is the intentional element of the crime.
In this case, Mr. X intends to obtain an illegal advantage, that is, the desire to withdraw his personal assets from any risk of conviction for liability for mismanagement. In addition, the commission of a written counterfeit is often followed over time by the commission of a separate crime known as "use of counterfeit," that is, the use of written counterfeit that causes harm or may cause harm. The publication of the minutes of the General Meeting in the Appendices of the Belgian monitor would constitute, in our case, a separate crime of use of counterfeiting.
Counterfeiting in writing can take different forms.
Consider annual accounts, those in which the financial indicators related to solvency are falsified in the balance sheet, or even where the profit and loss account is fictitiously reduced. These are cases of overvaluation of assets and undervaluation of liabilities.
Similarly, accounting operations can be recorded when they do not correspond to economic reality, such as invoices that must be prepared, which are subsequently discounted by means of a credit note to temporarily inflate the volume of business.
The accuracy of the annual accounts is a mirage.
It is good to keep in mind the maxim of Professor Pierre Van Ommeslaghe for whom the notion of the accuracy of the annual accounts is a mirage, thus insisting on the relative nature of the accuracy of the accounts, without wanting to justify the illicit behaviour source of the falsification.
Let's also think about adjustment accounts or work in progress, the content of which can be manipulated so as not to show operating losses. Or also, the voluntary omission of values that affect the final result. In this sense, it is good to keep in mind the maxim of Professor Pierre Van Ommeslaghe for whom the notion of the accuracy of annual accounts is a mirage, thus insisting on the relative nature of the accuracy of the accounts, without thereby wanting to justify the behaviour which resulted in illegal counterfeiting.
In addition to an imprisonment of 5 to 10 years, the forger may be sentenced to a ban of exercising the mandate of administrator, commissioner or manager of a company for a period of 3 to 10 years. Let us also remember that there is a cause of justification developed by jurisprudence: it is the state of necessity.
Jean-Claude Renard and Faudil Saadi
The 12th Congress of the Spanish-Austrian Lawyers Association took place in Malaga on the 22nd of October.