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Research On The Crime Of Forging Documents

Posted on:2006-06-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y M XiongFull Text:PDF
GTID:1116360182965653Subject:Criminal Law
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The dissertation presents a special approach on the study on the crime of forging documents. From the beginning of the study of its legislation, the dissertation discusses its basal idea, the meaning and characteristic of documents, the character of the crime of forging documents, and its objective act and subjective purpose, and so on. The dissertation makes a fundamental and comprehensive research on the theory of the crime of forging documents, in order to contribute to the legislation, the judicature and criminal theoretical research. Apart from the preface, the dissertation is divided into five chapters.In the preface, the author states the motive for writing, the significance of writing and the current situation of research as well mainly. In other countries, the research about the topic is deep. However, in our country, the research about it is sketchy and one-sided, and there is no monograph, which specializes on the crime of forging documents. Therefore, it is imperative to make a systematic and deep study on the crime of forging documents.Chapter one is about the survey of the crime of forging documents. The author introduces the legislation survey of the crime of forging documents in Anglo-American criminal law, continental criminal law and Chinese criminal law, and some fundamental ideas of the crime of forging documents. The crime of forging documents is erected simply and generally, and usually discussed in the crime of counterfeiting and the meaning of documents is wide comprehended in Anglo-American criminal law. In continental criminal law, the crime of forging documents is provided by a special section, the meaning of documents is definite either by legislative interpretation or by logical interpretation, the meaning of forgery comprises both visible forgery and invisible forgery. Either Anglo-American criminal law or continental criminal law formulates the criminal intent in the crime of forging documents. In our Chinese criminal law, the crime of forging documents is disseminated in different sections, neither the meaning of documents and forgery nor its criminal intent is definite and stipulated. There are four kinds of theory argumentson the concept of forgery as follows, the widest sense forgery, wide sense forgery, narrow sense forgery and the narrowest sense forgery. Generally speaking, continental criminal law takes the narrowest sense forgery. The crime of forging documents can be divided into the crime of forging public documents and the crime of forging private documents, the crime of forging documents and the crime of altering documents. The crime of forging documents in Chinese criminal law has been taken the theory of wide sense forgery, including three acts of forging documents invisibly, altering documents and forging documents visibly. According to this, we may divide forgery in Chinese criminal law into three kinds: including forging documents invisibly and forging documents visibly, including altering documents visibly and altering documents invisibly, including forging documents visibly and altering documents visibly. There exist some fundamental idea of formalism theory and substantive theory, the act theory and mind theory, which are opposed arguments, as to formalism, the criminal object of the crime of forging documents is documents' formal truth, as to substantive theory, the criminal object of the crime of forging documents is documents' content truth. About the manufacturer there are arguments of the behavior theory and the idea theory, according to the behavior theory, the so -called manufacturing is the person who manufactures the documents in effect, according to the latter, the so -called manufacturing is the person who expresses his mind in the documents in effect. Among the latter, there are such theories as the effect theory, the actual idea theory, the theory of documents evidence and the theory of investigating into responsibility. In Germany and Japanese criminal law, the effect theory is often used to explain the manufacturer. In criminal law, the principle of taking formalism theory as the dominant factor and substantive theory as the supplementary one. Generally speaking, it is proper to adopt the mind theory to comprehend the manufacturer.Chapter two is about the character of the crime of forging documents. The author has introduced the character of the crime of forging documents. There are theorical arguments such as the theory of violating legal interests, the theory of public credit, the theory of transaction safety, the theory of preparatory crime and the theory of documents function. Among the theory of documents function, there are differences topay attention to the function of document transmitting declaration of will, the function of documents evidence, the function of fixing declaration of will perpetually and the function of documents guaranty. The criterion of the true obligation of the theory of violating legal interests is indefinite. The meaning of the theory of public credit and the theory of transaction safety is unclear, according to them, it is difficult to explain forging private documents reasonably. The theory of preparatory crime makes he protected legal interests of the crime of forging documents become unclear. There are divergences inside the theory of documents function and it is difficult to understand the meaning of function. The theory of public credit is general in continental criminal law, but the theory of documents evidence and the theory of documents guaranty function, which are of the theory of documents function, are forceful. There are different theories similar to foreign theories, such as the theory of public credit, the theory of management rules, the theory of regular activity and management activity. Because these theories are too vague and general to explain the reason of creating the crime of forging documents. The author argues that the protected legal interests of the crime of forging documents should be comprehended to be unity of the theory of documents evidence and the theory of documents guaranty function. According to the theory of documents function, we can explain the basis to penalize invisible forgery, the reason to safeguard private documents, the reason to punish forging documents, which has no nominal person and so on.Chapter three is about the criminal object of the crime of forging documents. The author has introduced the meaning, the trait of documents, the nominal person of documents, the kinds of documents, the duplicated documentation the documents trait of election disc and so on. On documents meaning, there are three kinds of argument, i.e. the widest sense theory, wide sense theory and narrow sense theory. The narrow sense document has the seeablity, the successive quality, the contacting quality and the testimony quality. About the topic whether the duplicated documentation and election record are parts of documents, there exist two kinds opposed arguments in Chinese criminal law. In order to hold the principle of a legally prescribed punishment for a specified crime, the author suggests that the documents in Chinese criminal lawshould be narrow sense. Considering the private document's credit increasing and the private document's importance and its evidence trait, the author adopts negative theory on the duplicated documentation, and advocates to penalize forging private documents by supplying new crime. As for election disc, the author does not think it belongs to narrow documents, but we should perfect legislation to solve the problem of improper making election disc as far as possible. The nominal person and manufacturer are two necessary factors of documents. About the nominal person there is difference between the theory of necessary nominal person and the theory of unnecessary nominal person. The author takes the latter. The documents can be divided into true documents and untrue ones, accidental documents and intentional ones, complete documents and incomplete ones, public documents and private ones. The difference between the public documents and private ones is whether the document is manufactured by government functionary and the document has the evidence trait.Chapter four is about objective conduct of the crime of forging documents. The author discusses the legislation, meaning, the feature of visible forgery, invisible forgery and alternation, and the difference each other. Invisible forgery is meant that the man, who has no jurisdiction to manufacture documents, pretend to be the nominal person to manufacture documents, invisible forgery is meant that the man, who has jurisdiction to manufacture documents, manufacture documents against reality. The completion of the crime of forging documents lies in the documents enough to make the normal person mistake it for true documents. The difference between visible forgery and invisible forgery is whether the nominal person and manufacturer are identical, if they are identical, maybe making documents belongs to invisible forgery, otherwise, belongs to visible forgery. Based on this, the author has discussed the difference between them from five aspects as follows, imposturing agency titular, abusing of right of representation, imposturing title, nominal person's acceptance and using ordinary name. There is dispute whether visible forgery or invisible forgery on imposturing agency titular, foreign theory often thinks of to be invisible forgery on abusing of right of representation, if somebody drops out of jurisdiction, then may bevisible forgery, there is argument of the positive and negative theory on whether imposturing title is invisible forgery, whether using ordinary name is forgery, we consider both objective and subjective elements, as to the nature of nominal person's acceptance, there are the opposite views of the positive and negative theory. The author argues that imposturing agency titular is visible forgery, abusing of right of representation is invisible forgery, imposturing title is invisible forgery, using ordinary name should adopt the negative theory in principle, using untrue name to manufacture documents is not visible forgery, on nominal person's acceptance, we should take the positive theory. Alternation is to change the non-essence content of documents. Somebody suggests whether the man has the alternation jurisdiction is distinguish alteration from forgery. The author thinks the difference between forgery and alternation is whether documents' essential content has been changed, if changed, it becomes forgery, conversely, it is alteration. There are scholars to admit invisible forgery in theory research and to adopt the theory to penalize the crime in judicial practice. We should strengthen penalizing invisible forgery in our criminal law.Chapter five is about subjective elements of the crime of forging documents. The author has introduced its legislation ,the meaning of subjective purpose, the meaning and important condition of "for the purpose of applying" mainly. Foreign criminal law often prescribes its absichsdelikte clearly and definitely, however, there is no this definition in Chinese criminal law terms, and there are the positive and negative theory about whether we should definite its subjective purpose in theory. Considering the need of advocating the theory of the modestly restraining and adhering to the theory of documents evidence, the author holds that the crime of forging documents in Chinese criminal law should be confined to have the criminal intent for the purpose of applying. The so-called "for the purpose of applying" is meant the purpose that who makes connected person mistake forged documents for true ones or wrong documents for true ones. The object of applyment is narrow forged documents and wrong documents, the other party of applyment should be the person who is connected with the documents, the applyment includes submitting documents to the other party, consigning, delivering, laying the documents and so on.
Keywords/Search Tags:forgery, documents, the theory of documents evidence, formalism, for the purpose of applying
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