Obtaining false certification in the formation of a joint-stock company through untruthful statements regarding the availability of contributions

Facts

Parties and procedural history: The appellant X. was convicted by the Criminal Chamber of the Canton of Thurgau of commercial fraud, obtaining false certification, and other offences to a term of five years’ imprisonment and a fine of Fr. 1,000.--. X. filed a nullity appeal seeking acquittal on the charge of obtaining false certification.

Facts: In 1964, X. formed a joint-stock company after his sole proprietorship had shown an over-indebtedness of over Fr. 140,000.-- at the end of 1963. When forming the company, he falsely told the certifying notary that the contribution in kind and the paid-in amount were at the free disposal of the new joint-stock company. In fact, X. had from the outset intended to use the contributed assets to settle the debts of his sole proprietorship. With the falsified document, he succeeded in having the company registered in the commercial register.

Considerations

Classification of the document as a public document: The Federal Court confirmed that the public document on the formation of a joint-stock company constitutes a document within the meaning of Art. 110 No. 5 SCC. This applies regardless of whether the certifying person can verify the facts confirmed. The document is suitable and intended to prove the statements confirmed by the founders (Art. 638 para. 2 CO) and thus meets the requirements of a public document.

Deceptive act and objective elements of the offence: The appellant falsely told the notary that the contributions were at the free disposal of the company. In reality, however, he intended to use the contributed assets to settle his debts. This deception led the notary to issue false certification. The duty to provide truthful information to the notary arises from Art. 638 para. 2 No. 2 CO and Art. 81 para. 3 FR. The concealment of the sole proprietorship’s over-indebtedness and the intention to use the contributions to settle the sole proprietorship’s debts constitutes deception that fulfils the objective elements of Art. 253 para. 1 SCC.

Relevance of the concealed facts: The existence of the sole proprietorship’s liabilities and the intention to settle them with the contributed funds were of great importance to the co-founders and future creditors of the joint-stock company. These facts should…