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Military government weekly information bulletin
Number 98 (June 1947)

Powers of economic council set,   pp. 14-17 PDF (2.8 MB)


Page 15

(3) Any person who willfully Infringes the
obligations under subsection (2) shall be liable
to imprisonment not exceeding one year and
a fine not exceeding RM 20,000, or to one
of those penalties; any person who negli-
gently infringes these obligations shall be
liable to a fine not exceeding RM 10,000.
(4) In addition to the penalty the forfeiture
of the commodities Which have been con-
cealed may be ordered; SeCtion 14 shall apply
mutatis mutandis.
(5) Further, Sections 16, 19 to 35 shall apply
mutatis mutandis.
Section 13
(1) Unless  other  provisions  impose  a
heavier penalty, imprisonment not exceeding
five  years  and   a  fine  not  exceeding
RM 100,000 or the threefold amount of the
profit obtained by the offense or of the
value of the objects in respect of which the
offense has been committed or one of those
penalties shall be imposed on any person
who
(i) violates any order or implementing ,re-
gulation issued by a Land Authority under
this Ordinance or any executive order issued
by the E.C.E. or its Chairman which is bind-
ing upon him under Section 3, provided that
such order or regulation contains an express
reference to the penal provisions of this
Ordinance.
(ii) makes or utilizes false or incomplete
statements  of facts in  order  to  obtain
fraudulently either for himself or for another
person any permission, grant, binding pro-
misie or other certificate issued in virtue of
this Oirdinance.
(2) An attempt shall be punishable.
(3) Where the infringement is due to negli-
gence the imprisonment shall not exceed one
year.
Section 14
(1) In the case of Section 13 the objects
in respect of which the offense has been
committed, may, in addition to the penalty,
be forfeited in favor of the   Land, even
where they do not belong to the offender or
an accessory.
(2) If the accused is not the owner, for-
feiture shall not be ordered if the owner
neither knew or ought to have known of the
infringement nor derived any benefit there-
from.
(3) If forfeiture of the objects referred to in
subsection (1) cannot -be effected or may not
be ordered under subsection (2), forfeiture of
a sum of money equal to the value of the
objects may be ordered (substituted for-
feiture). Where it is not certain whether fo-r-
feiture will be practicable the Court may order
substituted forfeiture in the event of for-
feiture being impracticable. Substituted for-
feiture may be subsequently prescribed by
an order of the Court (Beschluss).
(4) In respect of third party rights com-
pensation is to be paid up to the amount
of the value or the proceeds of the forfeited
objects, unless thei third party knew or
ought to have known of the infringement or
derived a benefit therefrom. In ascertaining
the extent to which a right was covered by
the value or the proceeds of the forfeited
objects, prior rights must be taken into
account even if the conditions laid down 'for
compensation in the first sentence are not
fulfilled. A claim shall become final. The
claim may be brought before the ordinary
courts.
(5) If a person other than the accused
asserts rights in objects liable to forfeiture
or if there are facts pointing to the existence
of sudh rights, the person concerned shall be
given the opportunity of proving that the
conditions under which forfeiture may be
ordered' do not exist or that he has rights
in the objects liable to forfeiture. Proof may
be adduced until forfeiture is ordered. If
proof is adduced only after the dicision
ordering forfeiture, the Court may set aside
or restrict the forfeiture.
(6) Where it is not possible to prosecute
or convict a specific person, forfeiture may,
at the request of the Staatsanwaltschaft, be
separately ordered by an order (Beschluss).
Such an order is subject to the appellate
remedy of "sofortige Beschwerde''.
(7) - On the decision becoming final the
ownership in the forfeited objects passes to
the Land, other rights therein becoming ex-
tinguished.
(8) In the event of a right being acquired
after the decision has become final, the pro-
visions of the Civil Code in favor of persons
who claim under persons having no title shall
apply.
SectIon 15
(1) The Authority (Section 38) may order
the realization of objects liable to forfeiture
if there is a risk of the objects deteriorating
or perishing before the decision regarding
forfeiture can be made. The same -rule shall
apply where an early realization of the ob-
jects is necessary in order to satisfy an
urgent demand of the economic situation
or of consumers and no excessive damage
will be caused thereby to the owner. The
proceeds shall be substituted foir the objects.
(2) Where the objects liable to forfeiture
have been seized under the provisions of the
Strafprozessordnung / Strafrechtspflegeordnung,
their realization may only be ordered with
the consent of the Staatsanwaltschaft.
Section 16
In cases under Sections 12, 13 and 14 the
provisions of Articles 416 and 417 of the
Reichsabgabeordnung shall apply mutatis mu-
tandis with respect to fines and forfeitures.
Section 17
(1) If a person has committed an offense
punishable under Section 13 knowlingly and
recklessly from grossly selfish motives, the
Court may, for a period of not less than
one year and not moxe than five years, in
addition to the penalty, prohibit, entirely or
partially, such person from engaging in activ-
ities or menaging an enterprise in the field
in which the offense was committed, or sub-
ject his doing so to the fulfillment of con-
ditions. In the event of the accused being
entirely prohibited from managing an enter-
prise, the Court may order that the enter-
prise be carried on by a custodian. The
Authority (Section 38) shall appoint the
custodian and shall regulate his functions and
powers.
(2) Section 420, subsections 3 and 4 of the
Strafgesetzbudi shall apply mutatis mutandis.
(3) In cases under subsection (1) the Court
may, in addition to the penalty, order the
permanent closing down or the permanent or
temporary restriction of the business of the
accused - or may make its continuation de-
pendent on the fulfillment of conditions. If
the business is owned by several persons the
closing down or restriction may be ordered
only if the grounds set out in subsection (1)
obtain in the case of all managing owners.
The fact that one of the managing owners
is not guilty within the meaning of subsec-
tion (1) does not preclude the making of the
order if the person in question is married to
a guilty managing joint owner.
(4) The provisions of subsection (3) shall
apply mutatis mutandis to Gesellschaften mit
beschirankter Haftung, with this proviso that
the shareholders who are also managers (Ge-
schaftsfuhrer) shall be deemed managing
owners.
(5) The closing down of the business has
the effect of prohibiting the guilty person
from engaging in any activity the aim of
which is the continuation of the business
either by himself or through a third party
or the sale of the business as a whole. The
provisions of the civil law in favor of per-
sons claiming under persons with no title
shall apply mutatis mutandis. The Authority
(Section 38) shall have power to give instruc-
tions regarding the winding-up of the business,
in particular to impose conditions or to
appoint a liquidator and regulate his functions
and powers.
(6) Notwithstanding any contractual pro-
vision to the contrary, where a business has
been closed down, contracts of service may
be terminated by giving the notice required
by law or the coilectve agreement; leases,
by giving the notice required by law. The
same rule applies where restrictions affecting
the business have been imposed, insofar as
the termination of the contract by notice is
necessary for the carrying-out thereof.
(7) Objections by the guilty person to
measures taken for the enforcement of the
closing down or restriction of the business
shall be decided by the Court which ordered
the closing down or restriction of the
business.
(8) Measures under subsection (1) and sub-
section  (3)  may  be  ordered  singly  or
cumulatively. The convicted person bears the
costs of carrying-out such measures.
Section 18
(1) Any person who, directly or indirectly
through another person, transacts business or
engages in any activity or manages any
enterprise contrary to a prohibition under
Section 17, shall be liable to imprisonment
not exceeding two years and a fine not ex-
ceeding RM 100,000 or to either of these
penalties.
(2) The same penalty may be imposed on
any person who transacts business with or
on behalf of any suds person, with the know-
ledge that this person is prohibited from any
business activity or from managing an enter-
prise oir that the business has been closed
down.
(3) In addition to the penalty the Court
may order the forfeiture of the objects to
which the prohibited enterprise of the pro-
hibited activiy relates as well as the objects
and installations intended or used for the
continuation of the business or activity, pro.
vided that they belong to the offender or an
accessory. The provisions of Sections 14, sub-
sections (3) to (8) and Section 15 shall apply
mutatis mutandis.
Section 19
(1) The Authority (Section 38) may be
joined in the criminal proceedings as ad-
ditional complainant (Nebenklager).
(2) The sentence and other decisons termin-
ating the proceedings shall in all cases be
served on the Authority. The period of limit-
ation for lodging an appeal shall only begin
to run from such service.
Section 20
(1) Where an offense punishable under
Section 12 or 13 has been committed in the
conduct of an enterprise, the Authority
(Section 38) may impose on the proprietor
23 JUNE 1947
WEEKLY INFORMATION BULLETIN
15


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