Preparation of False Official Documents: Elements, Object, Use, and Status

What is the offense of preparing false official documents?

The offense of preparing false official documents is set out in Article 227 of the Korean Criminal Act.

Article 227 (Preparation, etc. of False Official Documents) A public official who, with intent to use, falsely prepares or alters a document or drawing relating to his/her duties shall be punished by imprisonment for not more than 7 years or by a criminal fine not exceeding KRW 20 million.

Elements of the offense of preparing false official documents

The elements of the offense of preparing false official documents are as follows.

The perpetrator must have the status of a public official

There must be an intent to use

A document or drawing relating to one's duties must be falsely prepared or altered

Here, alteration means falsely changing the contents of a document that was properly prepared.

Documents relating to one's duties under the offense of preparing false official documents

A document relating to one's duties under the offense of preparing false official documents refers to a document that a public official prepares within the scope of his/her official authority.

Here, it does not matter whether the document is external or internal, and the official authority does not necessarily require a statutory basis; it broadly includes documents prepared under the authority to perform duties pursuant to an order, internal regulation, or established practice.

"Falsity" in the offense of preparing false official documents

Falsity in the offense of preparing false official documents refers to a case where the stated contents do not correspond to the truth, thereby endangering the public trust placed in the document.

In this regard, the offense is established once the perpetrator is aware that the contents are false when preparing the false official document, and because the very act of preparing a false official document endangers the public trust in the document and is therefore punishable, it is not required that specific harm to a particular person actually occur or that there be a risk of such harm.

Object of the offense of preparing false official documents

The object of the offense of preparing false official documents is a public official who has the authority to prepare the document.

Where an official document is falsely prepared by a public official who lacks the authority to prepare it, or by a person who is not a public official, the offense of forgery of official documents is established instead.

Use under the offense of preparing false official documents

Using a false official document under this offense results in punishment.

Even if a person has not forged, altered, falsely prepared, or modified an official document, they may be punished if they use it.

According to Article 229 of the Korean Criminal Act, the provision reads as follows.

Article 229 (Uttering of Forged, etc. Official Documents) A person who uses a document, drawing, special media record such as an electromagnetic record, an authentic copy of a notarial deed, a license, a permit, a registration certificate, or a passport made through any of the crimes under Articles 225 through 228 shall be punished by the penalty prescribed for each respective crime.

Status under the offense of preparing false official documents

Status is highly important in the offense of preparing false official documents. Where a person who is not a public official, lacking the status of a public official, participates together with a public official, then under Article 33 of the Korean Criminal Act they may be punished not as an indirect principal but as a co-principal, instigator, or aider and abettor.

Article 33 (Accomplices and Status) Where a person without the requisite status participates in a crime that can only be established by a person having such status, the provisions of Articles 30 through 32 shall also apply to that person without such status. Provided, that where the severity of the punishment varies depending on the status, the person without such status shall not be punished with the heavier penalty.

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