Forgery of Documents in Japan: What Constitutes a Forged Document and What are the Penalties?

Documents form the bedrock of countless social and commercial transactions, serving as crucial evidence of agreements, identities, rights, and obligations. The trustworthiness of these documents is paramount. Japanese criminal law provides a comprehensive, albeit complex, framework for punishing the forgery, alteration, and illicit uttering of documents (文書偽造罪, Bunsho Gizō-zai), recognizing the significant harm such acts can inflict on public confidence and the integrity of societal interactions. This article delves into what constitutes a "document" and "forgery" under Japanese law, the distinction between public and private document offenses, and the implications for businesses.

1. What Constitutes a "Document" (文書, Bunsho) in Japanese Criminal Law?

Before examining forgery, it's essential to understand what Japanese law considers a "document" for the purposes of these offenses. The concept is broader than just paper records and generally encompasses:

• An Expression of Will or Idea: The item must convey some human thought, will, or idea.
• Use of Characters or Visible Symbols: This expression must be rendered in written language or other generally intelligible symbols that are visually perceptible.
• Fixation on a Tangible Medium with Permanence: The expression must be recorded on a physical object (paper, stone, wood, etc.) with a degree of durability, intended to persist for a certain period. Momentary displays are generally not documents.
• Identifiable Purported Maker (名義人, Meigi-nin): The document must indicate, either explicitly or implicitly from its context, the person or entity whose will or idea it purports to represent. A document with an anonymous or unidentifiable maker typically lacks the evidentiary value that forgery laws aim to protect. The purported maker can be a natural person, a corporation, or other organizations.
• Relevance to Social or Legal Transactions: The document must have some significance in social or legal dealings, often by serving as evidence of certain facts, rights, or duties. Purely personal notes with no external relevance, or academic treatises and artistic works (whose value lies elsewhere than their simple evidentiary function regarding authorship of a specific legal/social claim), are generally not the subject of these forgery provisions.
• Drawings (図画, Zuga): The statutes often include "drawings" alongside "documents," covering items like maps, plans, or official insignia that convey meaning through graphic representation.

The Status of Copies (写し, Utsushi)

Traditionally, a copy of a document was seen as a new document created by the person who made the copy. However, with the advent of photocopying, the legal view has adapted. The Supreme Court of Japan has held that a photocopy can be considered a "document" for forgery purposes if it has the appearance and is intended to serve the social function and engender the same level of credit as the original document. In such cases, forging a photocopy can be treated as forging the original document in the name of the original purported maker (Supreme Court ruling, April 30, 1976; Supreme Court ruling, May 30, 1979 ). This pragmatic approach recognizes that photocopies are widely used and relied upon as if they were originals in many transactions. Similar reasoning has been applied to documents transmitted by fax (Hiroshima High Court, Okayama Branch, May 22, 1996 ).

2. Forgery (偽造, Gizō) vs. Falsification of Content (虚偽文書作成, Kyogi Bunsho Sakusei)

A fundamental distinction in Japanese document crime law is between "tangible forgery" and "intangible forgery":

• Tangible Forgery (有形偽造, Yūkei Gizō): This involves creating a document that is false as to its originator or authenticity. The core of tangible forgery is the falsification of the identity between the purported maker (名義人, meigi-nin)—the person or entity whom the document represents as its author—and the actual creator (作成者, sakusei-sha). This is achieved by creating a document in another's name without authority, or by using a false name in a way that suggests it is from a real, different person. The content of such a document might be entirely true, but its falsified authorship makes it a forgery.
• Intangible Forgery (無形偽造, Mukei Gizō): This involves an authorized maker of a document creating a document whose content is false. Here, the authorship is genuine (the purported maker is the actual creator), but the statements or information within the document are untrue. This is also referred to as "falsification of content."

Japanese criminal law primarily adopts a "formalistic" approach (形式主義, keishiki-shugi), meaning it places a strong emphasis on protecting the authenticity of the document's origin (i.e., punishing tangible forgery broadly). The truthfulness of a document's content is protected more selectively. Intangible forgery is generally criminalized only for public documents and certain specific types of private documents where a high degree of public trust in their content is deemed necessary (e.g., medical certificates for official submission).

Alteration (変造, Henzō) is another key concept. This refers to modifying an already genuinely created document without authority, in a way that changes its content but does not destroy its essential identity as the same document. If the modification is so substantial that it creates what is effectively a new document, it is considered forgery rather than alteration.

3. Forgery of Public Documents (公文書偽造, Kōbunsho Gizō)

Public documents (公文書, kōbunsho)—those created by public offices or public officials in their official capacity—receive a high degree of protection due to the significant public trust placed in them.

A. Types of Public Document Forgery:

• Forgery/Alteration of Official Documents (Article 155, Penal Code): This is the main provision. It criminalizes the tangible forgery or alteration of documents that "should be made by a public office or a public official."
  • With Seal or Signature (有印公文書偽造・変造, Yūin Kōbunsho Gizō/Henzō): If the forgery involves using (or forging) an official seal or signature, the penalties are significantly higher (imprisonment with work for not less than 1 year and not more than 10 years). This is because seals and signatures are key indicia of authenticity and authority. "Signature" here can include a printed name if it officially represents the public official or office.
  • Without Seal or Signature (無印公文書偽造・変造, Muin Kōbunsho Gizō/Henzō): If the forged public document lacks an official seal or signature, the penalties are lower (imprisonment with work for not more than 3 years or a fine of not more than 200,000 yen).
  • Examples include forging a driver's license, an official certificate, or a passport. Even documents that have expired may still be considered "public documents" if they retain some social function and can mislead (Supreme Court ruling, April 25, 1977 ).
• Forgery of Imperial Documents (詔書偽造等罪, Shōsho Gizō-tō Zai - Article 154): This deals with the forgery or alteration of edicts and other documents issued under the Emperor's name using the Imperial or State seals, carrying very severe penalties (imprisonment with work for not less than 3 years or for life).
• Creation of False Official Documents by a Public Official (虚偽公文書作成等罪, Kyogi Kōbunsho Sakusei-tō Zai - Article 156): This is the primary offense for intangible forgery of public documents. It punishes a public official who, in relation to their duties, creates a document with false content or alters a document to make its content false. This requires the official to have the authority to create the document in question.
  • Private individuals can be liable for this crime as indirect perpetrators if they cause an unwitting public official (who has authority) to create a false public document (e.g., by providing false information that the official relies on). However, if the private individual directly deceives an official into making false entries in certain specific public registers, a different offense applies (see below).
• Making False Entries in an Authentic Deed Original, etc. (公正証書原本不実記載等罪, Kōsei Shōsho Genpon Fujitsu Kisai-tō Zai - Article 157): This specifically targets private individuals who, by making a false application to a public official, cause a false entry to be made in an official register concerning rights or duties (e.g., real estate registries, family registers, commercial registries) or in an official license, permit, or passport. This is a form of indirect intangible forgery focusing on specific types of official records often initiated by private applications.

4. Forgery of Private Documents (私文書偽造, Shibunsho Gizō)

Private documents (私文書, shibunsho)—those created by private individuals or entities—are also protected, though generally with lesser penalties than public documents, reflecting a different level of presumed public reliance.

A. Types of Private Document Forgery:

• Forgery/Alteration of Private Documents (Article 159, Penal Code): This is the main provision for tangible forgery of private documents.
  • With Seal or Signature (有印私文書偽造・変造, Yūin Shibunsho Gizō/Henzō): Forging or altering another person's private document using their seal or signature (or a forged seal/signature) is punished more severely (imprisonment with work for not less than 3 months and not more than 5 years).
  • Without Seal or Signature (無印私文書偽造・変造, Muin Shibunsho Gizō/Henzō): Forgery or alteration of private documents lacking a seal or signature carries a lesser penalty (imprisonment with work for not more than 1 year or a fine of not more than 100,000 yen).
  • Limitation on Object: Unlike public documents, the forgery of private documents is only criminal if the document pertains to "rights, duties, or the certification of facts" (権利、義務又は事実証明に関する文書, kenri, gimu mata wa jijitsu shōmei ni kansuru bunsho). This means the document must have some legal or socially significant evidentiary function. Personal letters without such significance, for example, would generally not be covered.
    • "Rights or duties" usually refers to those with legal effect (e.g., contracts, IOUs).
    • "Certification of facts" refers to documents that certify matters of importance in social life (e.g., letters of recommendation, academic transcripts, employment records; Supreme Court ruling, December 20, 1999 for a resume).
• Creation of False Medical Certificates, etc. (虚偽診断書等作成罪, Kyogi Shindansho-tō Sakusei-zai - Article 160): This is a rare instance of criminalizing intangible forgery of private documents. It specifically punishes a physician who makes a false entry in a medical certificate, autopsy report, or death certificate that is to be submitted to a public office. This exception is due to the high public reliance on the truthfulness of such documents.

B. Key Issues in Private Document Forgery:

• Authority and Consent of the Purported Maker:
  • If an agent acts beyond their authority in creating a document in the principal's name, it can be forgery. The Daishin-in ruling of October 20, 1922 distinguished between abusing existing authority (not forgery) and acting without authority (forgery).
  • Generally, if the purported maker validly consents to their name being used by another, there is no forgery because the document accurately reflects the maker's will to be bound. However, for certain documents that require personal execution due to their nature (e.g., statements to police, university exam papers), even with consent, having another person create it in one's name can constitute forgery (Supreme Court ruling, April 8, 1981; Supreme Court ruling, November 29, 1994 ).
• Use of Assumed Names or Titles: Creating a document under a false name (gimei) or with a false title (kata-gaki) can be forgery if it misrepresents the identity of the maker in a way that is material to the document's credibility or purpose, essentially creating a "different personality" (Supreme Court ruling, February 17, 1984; Supreme Court ruling, October 5, 1993 ).

5. The Subjective Element: "Purpose of Uttering" (行使の目的, Kōshi no Mokuteki)

Most document forgery and falsification offenses (with the notable exception of Article 157 – False Entries in Authentic Deed Originals) require that the act be done "for the purpose of uttering" (行使の目的, kōshi no mokuteki). This means the forger must intend for the fraudulent document to be used or presented as if it were genuine and true, thereby potentially deceiving others and harming public trust. If a document is forged merely as a prank or for personal amusement with no intention of it being used in any transaction or communication, this element is lacking.

6. The Crime of Uttering (行使, Kōshi)

Actually using or presenting a forged, altered, or falsified document as if it were genuine and true constitutes the separate offense of uttering (e.g., Article 158 for public documents, Article 161 for private documents).

• Uttering involves making the fraudulent document's content known to another person or placing it in a state where it can be perceived by another, under circumstances where it is presented as authentic.
• This can include showing it, delivering it, submitting it to an authority, or even placing a false public document (like a forged registry entry) in a public office where it can be inspected (Daishin-in ruling, May 1, 1922 ).
• The person to whom it is uttered must generally be unaware of the forgery for the crime to be complete; showing it to an accomplice who knows it's fake is not "uttering" in this sense.
• Forgery/falsification and subsequent uttering by the same person are typically treated as connected offenses (kenren-han) for sentencing.

7. Forgery in the Digital Age: Electromagnetic Records (電磁的記録, Denji-teki Kiroku)

Recognizing the shift from paper to digital, the Penal Code was amended (in 1987) to include offenses related to the illicit creation of electromagnetic records (電磁的記録, denji-teki kiroku) that serve functions similar to documents.

• Article 161-2 criminalizes the unauthorized creation (不正作出, fusei sakushutsu) of public or private electromagnetic records concerning rights, duties, or the certification of facts, for the purpose of misleading another's data processing, as well as the uttering of such illicitly created records.
• "Electromagnetic record" refers to records made by electronic, magnetic, or other means imperceptible to human senses, which are used for data processing by computer (Article 7-2). Examples include data in bank account files, prepaid card balances, or customer databases.
• "Unauthorized creation" is a broad concept analogous to both tangible forgery (creating a false record without authority) and intangible forgery (an authorized person inputting false data or illicit commands to create a false record) of traditional documents.

8. Document Forgery in Business: Common Risks and Examples

Document forgery poses significant risks in the business world:

• Internal Forgery: Employees might forge signatures on internal approval forms, falsify expense reports, alter timesheets, or create fictitious entries in accounting records to cover up embezzlement or poor performance.
• External Forgery:
  • Forging contracts, purchase orders, invoices, or letters of guarantee to defraud clients, suppliers, or financial institutions.
  • Creating counterfeit company letterhead or using forged signatures of executives to lend false authenticity to communications.
  • Submitting forged financial statements or other documents to obtain loans or investments under false pretenses.
  • Using forged academic degrees or professional certifications in job applications.
  • Falsifying customs declarations, environmental compliance reports, or other documents submitted to regulatory authorities.
• Digital Risks: Tampering with electronic contracts or invoices, creating sophisticated phishing emails or fake company websites that solicit information or issue false "official" communications, and manipulating digital accounting records.

9. Penalties and Preventative Measures

Penalties for document forgery in Japan vary significantly depending on several factors:

• Type of document: Public documents (especially Imperial and sealed official documents) attract much harsher penalties than private documents.
• Nature of the act: Tangible forgery is generally treated more severely than intangible forgery (except for specific cases like false medical certificates or official false entries).
• Presence of seals/signatures: Forged documents bearing (or purporting to bear) official or private seals/signatures are punished more severely.
• Uttering a forged document carries the same penalty as forging that type of document.

Businesses must implement robust preventative measures:

• Strict Document Management Policies: Clear protocols for creating, authorizing, storing, and destroying sensitive documents.
• Access Controls: Limiting access to official seals, signature stamps, company letterhead, and critical electronic systems.
• Verification Procedures: Implementing checks to verify the authenticity of important incoming documents (e.g., contracts, payment instructions).
• Use of Digital Signatures and Secure Systems: Employing secure technologies for electronic documents and communications.
• Employee Training: Educating employees on the seriousness of document forgery and the company's policies regarding document integrity.
• Internal Audits: Regularly reviewing document creation and handling processes.

Conclusion

Document forgery is a serious offense under Japanese criminal law, aimed at protecting the fundamental public trust placed in documents as reliable evidence of will, ideas, and facts. The legal framework is detailed, distinguishing between various types of documents and illicit acts, and increasingly addressing the challenges posed by digital records. For businesses, vigilance against both internal and external document fraud, coupled with strong preventative controls, is essential to maintain operational integrity and avoid potentially severe legal and reputational consequences.