The commercial document under criminal law by Rafael Juan Juan Sanjose
A criminal purposes, They are excluded from the concept of commercial paper, those whose effects are purely internal, limiting their effectiveness in this area, with absolutely no impact on the legal and commercial traffic.
We publish below work Rafael Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.
Commercial Paper under criminal law
Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón
2.- Concept Paper on the Penal Code
2.1.- Document generally
2.2.- "Technological" documents
2.3.- Notes features
3.- Commercial Paper
The penal code, Despite quote, within the typical elements of certain crimes, the "commercial paper", It does not include in its articles, a definition that allows us to conclude safely, when we have a commercial document, or when a document to purely private, It is of vital importance, in crimes, the documentary falsehoods (Arts. 390 et seq.), such differentiation, It will be different because the offense to apply, It is also different legal consequence, as punishment, Action Author.
That is why in this paper we make a jurisprudential analysis in order to make a configuration concept, requirements, characters and defining features of document, and in particular the commercial document, under criminal law, in order to have clear points that determine its nature and the inclusion in a particular kind or another.
2.- Concept Paper on the Penal Code
2.1.- Document generally
The Criminal Code, in his article 26, considers document to support criminal purposes any material that expresses or enter data, facts or narratives probative or any other legal relevance.
As the definition given by the legislator too sparse to shed light on the extent of realities we face in forensic practice, case law has developed the concept of document and so the High Court, in Case 30 September 2010 (1), inter, It states that those documents are graphical representations of thought, generally written, created preconstitución evidentiary purposes and designed to have effect in legal transactions, originating or produced outside the cause and incorporated it later (SSTS 19.5.2000, 24.4.2002, 23.9.2003).
In this sense, continues the resolution, the judgment 19 January 2009 and self 5 April 2000 They highlighted as the Supreme Court has made an adjusted interpretation to the sociological reality, inasmuch as, It not is having been the subject of contextual interpretation and authentic, It can be considered social evolution.
It has thus developed a policy document as a whole concept indelible medium on which contents are reflected human origin, significant, with original character and evidentiary purpose, that must be integrated into the cause, literosuficientes be and not be contradicted by other evidence.
2.2.- "Technological" documents
Once the conceptualization warned that the law has given regarding the consideration of document under criminal law, the new reality and the advancement of information technology has forced legal operators to formalize a new theory, much broader and adapted to society, about what should be considered as a document, and so, as noted by the judgment of the Supreme Court 30 September 2010, the concept of document, actually, You can not booked and sticking exclusively to reflection and writing paper receptor of a human statement, from the moment that new techniques have increased offers of hardware able to embody and provide perpetuation thought and declaration of intent; a video recording, or film, un disco o una cinta magnetofónica, floppy discs, carriers demonstrations and accreditations, evidential vocation.
As the High Court in a ruling warns 5 December 2012 (2) indeed the extent of the type of document to digital there is no doubt from the LECivil 2000.
Article 135.5 LEC, already established, before the reform operated by Law 42/2015, of 5 October, when the courts and the parties involved in the process have the technical means can always be used as to ensure the authenticity, what has been most evident with this reform, in which as stated in the first point of the article 135 LEC when court offices and the parties involved in the process are bound to the use of existing telematic or electronic systems in the Administration of Justice under Article 273 (3), shall transmit and receive all written, initiators or, and other documents through these systems, except as otherwise provided by law, so that the authenticity of communications is guaranteed and remains a reliable record of integrity remission and reception, as well as the date on which they may be made,. This shall also apply to those involved that, without being obliged, opt for the use of telematic or electronic systems.
Similarly article expressed 230 LOPJ when set, after the reform by the LO 7/2015, of 21 July, that the documents issued by the above means (telematic), whatever its medium, they shall have the force and effect of an original document provided it is guaranteed their authenticity, integrity and compliance with the requirements of the procedural laws.
For all the above, the base paper has been overtaken by new technologies of documentation and information. Any system that allows incorporate ideas, statements, reports or data that can be reproduced at the time, supplies advantages to traditional written document, provided that there are technical instruments to prove the reliability and safety of those printed on the magnetic medium.
It is a social reality that the law can not ignore. The electronic document printed on "technological neurons", indelibly, what we have tried to convey by pulling the strings that convey ideas, thoughts or realities we want the record. Its authenticity is so firm that exceeds the reality that can be displayed in a written document.
The electronic document takes, according to materialize its forms, the possibility of acquiring the traditional categories of private documents, official or public, It is according to the technical elements to be incorporated for use and realization (4). The Law 34/2002, of 11 July, services of the information society establishes the validity of electronic contact which gives the computer springs as valid as traditional media.
2.3.- Notes features
The new document settings under criminal law, given the fact that the judicial function is developed as seen above, has made the case law developed a number of defining features and characterizing the document to have the same legal and criminal relevance.
So things, as states the Supreme Court ruling of 13 September 2002 (5), under the new legal formula, the literal interpretation of Article 26 CP unsatisfactory, and therefore, It is imposed to find another. So, it can be concluded that document under criminal law is the result of combining a carrier material and data, facts or narratives; it characterized by the following notes:
a) First, the document, being a materialization, debe constar en un soporte indeleble.
Thus, It is generally considered the written document as the quintessential document. Now, today there are reasons to prevent such a condition confer various documents written document: the reference to civil law (Arts. 1.216 ss. CC y 596 LEC) It can be explained historically (the French model), but it seems insufficient. Hence, following the gaps opened by the doctrine and jurisprudence, Article 26 closing a controversy in the right direction.
Therefore, if the document has to be formed by a human declaration form reasonably durable, otherwise I could not get in legal and evidentiary purposes not reach achieved, no obstacle is to book only the role the possibility of hardware of the embodiment of this declaration.
Any other support indelible identical vocation can be considered susceptible of document and, therefore, be liable to forgery; so, a video recording or film or sound (disco o cinta magnetofónica).
What will happen is that some of these supports, sometimes, they can be unreliable; susceptibility handling, but it is noticed, It can be great. Now, if in the case that possibility has not been able to, there is no obstacle to such a document admitting materialized.
Today, however, the intended reliability of paper has disappeared and all documents are equally vulnerable, so this alleged requirement can not be sine qua non to stop admitting what is commonly used in legal.
b) Otra nota es que tenga human origin. This is the content of the document will be attributable to a person.
In principle, It is irrelevant whether it is a manifestation of will (a will, for example) or a statement of understanding (minutes of a meeting of the Board of Directors, a medical certificate…), while its author is a human being.
This will have as a necessary consequence necessitate the setting of a particular author or, at least, determinable. The author of the statement-not involved or affected, as these are included or referred to in the document content – ha de ser determinable, no more problems than those derived from the ordinary understanding, although the help of technical means of public access required.
It is thus, input, excluding anonymous document; namely, which can not be attributed with certainty to anyone not expressly author. However, since the author is not determinable and determined, not anonymous document when it can be derived what the author; but the deduction must be by sense, not mediate various mechanisms (graphology test, fingerprints…) generalized and generalizable no access.
Article 26 refers to data, facts or narratives. The data, the fact or narration should traced back to his human origin. Otherwise a narrative that would equate, apparently, it can only come from a human being, to facts or data which can be, at least theoretically, unarmed portions of reality.
c) También el contenido de la declaración debe ser comprensible de acuerdo a los usos sociales, namely, significant in itself.
So, a foreign document, having effect in Spain, is punishable document and falsehood, for it is only necessary, sometimes, translation; in return, a written code, Encrypted, It is not a document for this purpose, it is intended by its construction opposite; mean nothing to anyone not in possession of the appropriate key; is; your income is not desired in legal.
Also, It is updated note significance. Similarly to what happens with certain conventional abbreviations-keys they are in the possession of all- or foreign documents -to understand it or have to study those languages or go to a translator- we must infer that all the documents are declarations of intent or knowledge that are drawn up by electronic or software and procedures for understanding and / or transmission and / or processing tools are needed or resources are also available to anyone: computers, modems, faxes…
d) También se requiere la entrada en el tráfico jurídico. If the document does not fall (NO it is designed to enter: encrypted document) the, even entering, lacks essential characteristics (human origin, autor determinable) or it means nothing (sopa de letras) we will not be to a document in the sense of purpose of criminal legal protection. This does not preclude any object can be integrated into another document, thus forming a complex, which will then yes alteration of a document.
and) Last, el documento válido es el documento original y no tienen tal carácter las copias ni fotocopias.
On this last point it should be explained, according to the statement made by the High Court ruling of 10 June 2003 (6), a photocopy can have full documentary value, if the subjective and objective circumstances in which the working copies are used to generate confidence in its authenticity (SSTS 13-3- 90 and 18-11-91, inter).
In conclusion, as the Supreme Court stated in its judgment 10 June 2003, to constitute material support document must meet three conditions:
1) be attributable to one or more persons if they are not signed.
2) have capacity to produce effects in legal.
3) be used for such traffic, well since its inception (Intentional documents), or subsequent (Occasional Papers).
And the embroidery, the document should serve three purposes:
a) la perpetuadora, as material fixation, intended to be permanent, Thinking of demonstrations.
b) probation, the document have been created to establish or prove something.
c) guaranty, according to which the document is to ensure that the person identified in it is what has made the statements attributed to him in the document itself.
3.- Commercial Paper
Our legislation does not exist, as such, a concept of "commercial paper", although the legislator, in the penal code, It refers to the same, as various criminal types configurator (p.e. Arts. 390 the 392 CP).
This lack of conceptualization, It has been supplemented by jurisprudence, a case analysis, and so on STS 17 February 2015 (7), the High Court echoes the question and states that it is settled law that, to analyze the legal and criminal concept of commercial paper, He has already declared from the STS 8 May 1997, followed by many others (8), it is a broad concept, equivalent to a document that is an expression of a commercial operation, reflected in the creation, alteration or termination of obligations of a commercial nature, and serve to cancel, and to establish rights or obligations as such, being such not only those specifically regulated in the Commercial Code or company law, but also all those who collect trade operation or be valid or effective to contain rights or obligations as such or serve to prove them, criterion is accompanied, in addition to an extensive concept whatever that particular activity.
As documents expressly mentioned in these laws include bills of exchange, notes, cheques, credit orders, cartas door, waybills, deposit slips and many others: Business papers are also all those graphical representations of thought created evidentiary purposes preconstitución, intended to take effect in legal and relating to contracts or obligations of a commercial nature, Finally, it includes other graphical representations of thought, those designed to prove the execution of such contracts such as invoices, delivery notes or other similar (STS. 788/2006 of 22.6).
En este sentido la STS 111/2009 of 10 February, by appointment on STS No. 900/2006, of 22 September, notes that "commercial documents which are expressed and collected trade operation shaping the creation, alteration or termination of obligations of a commercial nature, or accrediting or operations or activities manifest produced in the proper scope of a company or business entity and extends to all derived incidence of such activities ".
La STS 1209/2003 also expressly states that classification of business documents such as invoices, it is taken for granted in many other resolutions that not even such a classification is questioned. So generically STS 1634/2003 of 16 October if that was just the false invoices reflecting nonexistent operations.
In the same sense, and as summarized grounds, la Sentencia del Alto Tribunal de 18 December 2012 (9), the appointment of 10 March 1999, -with makes a declarative enumeration based on jurisprudential statements anteriores-, estimating and commercial documents:
a) Those that, provided with “The name of the law”, They are governed by the Commercial Code or special laws, such as bills of exchange, cheques, notes, letters of credit orders, shares and bonds issued by companies with limited liability, passbooks, bank credit facilities, credit cards, cartas door, charterparties, waybills, insurance policies.
b) All graphical representations of thought, usually in writing and their role, that, evidentiary purposes preconstitución, translate or credited the conclusion of contracts or the assumption of obligations of trading or commercial nature, although without designation known right; and
c) Finally, those relating to the implementation phase or consummation of commercial contracts or transactions, such as delivery notes, invoices or receipts, ledgers.
Notwithstanding the above, the Supreme Court, in sentence 26 April 2011 (10), nuance and determined to respect the decisions of the High Court initially had an extensive commercial concept special understanding of the documents covered by the Commercial Code and Law, and those who collect trade operation or have validity or effectiveness to record rights or obligations as such or serve to prove (SSTS 13 June 2003, 27 February 2004, 4 May 2005).
But from 1990 It has broken through a restrictive trend concept: some judgments as limited to the documents referred to in business law exceeding the simple private document justifying the aggravation of its falsity concerning the legal effect that; and restrict it to other documents that meet real commercial transactions between traders and commercial contract to which the document supports (SSTS 13 June 2003; 4 May 2005).
In the same vein the judgment of the Supreme Court 23 December 2010 (11), echoing that of 27 October 2009, after playing the broad definition of commercial documents, adds that, however, modern jurisprudence has not been insensitive to the restrictive sense of the concept that prevails in the mercantile praxis, having declared that article today 392 of the Criminal Code refers only to those deserving commercial documents special protection, because its material incorporates a presumption of veracity and authenticity equivalent to a public document, what it is the 'ratio legis' of assimilation, so that "it is not enough that it is a document used in the trade, but particularly compelling evidence is required, As with the bills of exchange, no special protection that they could hardly be transferable by endorsement in the usual way "”.
Thesis remains including the number STS 274/1996 and STS No. 267/2004, in saying that the first one “basically commercial documents should be considered transmissible by endorsement documents and any other that has probative value in traffic that exceeds that of a private document within the meaning of art. 1225 CC”.
In addition to these clarifications, can not stop assessed that neither the Civil Code, nor Trade, or the Code of Civil Procedure establishes general substantial distinctions between private documents and commercial documents as to their probative value, ultimately making, equating the latter class of public documents and official reside rather in the kind of operations regarding the data, facts or stories that have incorporated evidentiary or other legal relevance.
So, eg documentation of the transfer order, as with payment orders, when banks by individuals in the context of commercial and professional relationships of the same target, They have been considered by the law as commercial documents, while they are recognizing the existence of the order of the account holder for the transfer of money from the bank, (STS nº 447/2007, of 7 April; STS nº 564/2007, of 25 June; STS nº 764/2008, of 20 November).
Also, as the High Court expressed, in sentence 11 June 2014 (12), false invoices partake of the nature of business documents and can meet evidentiary purposes preconstitución, preconstitución and warranty, so they can be included on the assumption inveracidad second item number 390.1 CP – STS 8.5.2003 -. It is considered mendacious document “every one that incorporates a simulated sequence and inveraz claims with legal significance, as a complete or partial simulation of legal relations” – STS 26.9.2002 -.
As a result of the above, the concept of penal effects commercial document shall consist of previously developed elements, leaving, therefore excluded from this conceptualization, those documents whose effects are purely internal, limiting their effectiveness in this area, with absolutely no impact on the legal and commercial traffic.
Juan Juan Rafael Sanjose
Alternate Judge of the Provincial Court of Castellón.
(1) STS, Penal sección 1 the 30 September 2010 (ROJ: STS 5117/2010 – ECLI:ES:TS:2010:5117); Sentence: 803/2010 | Resource: 644/2010 | Speaker: BERDUGO Juan Ramon Gomez de la Torre - Legal Grounds first.
(2) STS, Penal sección 1 the 05 December 2012 (ROJ: STS 8701/2012 – ECLI:ES:TS:2012:8701); Sentence: 974/2012 | Resource: 2216/2011 | Speaker: JUAN RAMÓN BERDUGO GOMEZ DE LA TORRE – Legal Grounds 43
(3) Article 273 LEC Format of the writings and documents
1. All legal practitioners are required to use existing telematic or electronic systems in the Administration of Justice for submitting written, initiators or, and other documents, so that the authenticity of the presentation is guaranteed and remains a reliable record of integrity remission and reception, as well as the date on which they may be made,.
2. People who are not represented by counsel at all times be able to choose if they act before the Administration of Justice through electronic means or not, unless they are forced to interact through electronic means with the same. The means chosen may be modified at any time.
3. In any case, They are obliged to intervene through electronic means with the Administration of Justice, at least, the following subjects:
a) Legal entities.
b) Entities without legal personality.
c) Those pursuing a profession for which compulsory licensing is required for the procedures and actions taken by the Administration of Justice in exercising that occupation.
d) Notaries and registrars.
and) Those representing an applicant is required to electronically communicate with the Administration of Justice.
f) Officials of the government for the steps and actions to perform by virtue of his office.
4. The writings and documents submitted by telematic or electronic type and indicate the file number and year to which they relate and shall be duly paginated using an electronic index to its proper location and consultation. The presentation will be made using electronic signature and will conform to the provisions of the Act 18/2011, of 5 July, regulating the use of information and communications technology in the Administration of Justice.
Only the writings and documents electronically telematics or giving rise to the first site are presented, citation or request of the defendant or executed, It shall be furnished on paper, in three days, many literal copies as are the other parts.
5. Breach of the duty of using the technologies referred to in this article or technical specifications to be established will lead to the clerk give a maximum of five days for correction. If not remedied within this period, writings and documents have not presented for all purposes.
6. Notwithstanding the provisions of this Article, writings and documents shall be submitted on paper when expressly provided by law.
All written and any documents to be provided or present on paper and in views accompany many literal copies are few other parts.
(4) STS, Penal sección 1 the 04 November 2009 (ROJ: STS 7129/2009 – ECLI:ES:TS:2009:7129); Sentence: 1066/2009 | Resource: 442/2009 | Speaker: JOSE ANTONIO MARTIN PALLIN – Grounds as Derecho.
(5) STS, Penal sección 1 the 13 September 2002 (ROJ: STS 5850/2002 – ECLI:ES:TS:2002:5850); Sentence: 1456/2002 | Resource: 388/2001 | Speaker: MONER EDUARDO MUÑOZ - Legal Grounds first.
(6) STS, Penal sección 1 the 10 June 2003 (ROJ: STS 4001/2003 – ECLI:ES:TS:2003:4001); Sentence: 835/2003 | Resource: 3612/2001 | Speaker: JOSE RAMÓN SORIANO SORIANO – Fundamento de Derecho segundo.
(7) STS, Penal sección 1 the 17 February 2015 (ROJ: STS 1387/2015 – ECLI:ES:TS:2015:1387); Sentence: 135/2015 | Resource: 1842/2014 | Speaker: ANTONIO GARCIA DEL MORAL - Basis second law.
(8) Of those who are showing the SSTS 1148/2004, 171/2006 and 111/2009.
(9) STS, Penal sección 1 the 18 December 2012 (ROJ: STS 8871/2012 – ECLI:ES:TS:2012:8871); Sentence: 1001/2012 | Resource: 289/2011 | Speaker: ANDRES MARTINEZ ARRIETA - Legal Grounds 23.
(10) STS, Penal sección 1 the 26 April 2011 (ROJ: STS 3359/2011 – ECLI:ES:TS:2011:3359); Sentence: 431/2011 | Resource: 2379/2010 | Speaker: ADOLFO PREGO DE OLIVER Toliver - Legal Grounds sexto.'
(11) STS, Penal sección 1 the 23 December 2010 (ROJ: STS 7690/2010 – ECLI:ES:TS:2010:7690); Sentence: 1152/2010 | Resource: 1204/2010 | Speaker: MIGUEL COLMENERO Menéndez de Luarca - Legal Grounds fourth.
(12) STS, Penal sección 1 the 11 June 2014 (ROJ: STS 2491/2014 – ECLI:ES:TS:2014:2491); Sentence: 472/2014 | Resource: 288/2014 | Speaker: SORIANO SORIANO JOSE RAMON - Basis seventh Law.