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Eva-Maria Worm, Anhang in:

Eva-Maria Worm

Die Strafbarkeit eines directors einer englischen Limited nach deutschem Strafrecht, page 233 - 248

1. Edition 2009, ISBN print: 978-3-8329-4045-4, ISBN online: 978-3-8452-1543-3 https://doi.org/10.5771/9783845215433

Series: Studien zum Strafrecht, vol. 27

Bibliographic information
233 Auszug der im Kontext wichtigsten englischen Vorschriften THEFT ACT 1968 Definition of "theft" Version in force: February 1, 1991 1.— Basic definition of theft. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit. (3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section). 2.— “Dishonestly”. (1) A person's appropriation of property belonging to another is not to be regarded as dishonest— (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property. 3.— “Appropriates”. (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property. 4.— “Property”. (1) “Property” includes money and all other property, real or personal, including things in action and other intangible property. (2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say— 234 (a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or (b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land. For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly. (3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree. (4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession. 5.— “Belonging to another”. (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). (2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other. (4) Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. (5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation. 6.— “With the intention of permanently depriving the other of it”. (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the 235 borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights. Theft, robbery, burglary, etc. Version in force: October 1, 1992 7. Theft. A person guilty of theft shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years. Fraud and blackmail Version in force: February 1, 1991 17.— False accounting. (1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,— (a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or (b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular; he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years. (2) For purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document. 18.— Liability of company officers for certain offences by company. (1) Where an offence committed by a body corporate under section 17of this Act is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly. 19.— False statements by company directors, etc. (1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular, he shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years. 236 (2) For purposes of this section a person who has entered into a security for the benefit of a body corporate or association is to be treated as a creditor of it. (3) Where the affairs of a body corporate or association are managed by its members, this section shall apply to any statement which a member publishes or concurs in publishing in connection with his functions of management as if he were an officer of the body corporate or association. CRIMINAL ATTEMPTS ACT 1981 Part I ATTEMPTS ETC. Trial etc. of offences of attempt Version in force: May 1, 2004 4.— Trial and penalties. (1) A person guilty by virtue of section 1 above of attempting to commit an offence shall— (a) if the offence attempted is murder or any other offence the sentence for which is fixed by law, be liable on conviction on indictment to imprisonment for life; and (b) if the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence; and (c) if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence. (2) In any case in which a court may proceed to summary trial of an information charging a person with an offence and an information charging him with an offence under section 1 above of attempting to commit it or an attempt under a special statutory provision, the court may, without his consent, try the informations together. (3) Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact. (4) Where, in proceedings against a person for an attempt under a special statutory provision, there is evidence sufficient in law to support a finding that he did an act falling within subsection (3) of section 3 above, the question whether or not his act fell within that subsection is a question of fact. (5) Subsection (1) above shall have effect— (b) notwithstanding anything— (i) in section 32(1) (no limit to fine on conviction on indictment) of the Criminal Law Act 1977; or (ii) in section 78(1) and (2) (maximum of six months' imprisonment on summary conviction unless express provision made to the contrary) of the Powers of Criminal Courts (Sentencing) Act 2000. 237 COMPANIES ACT 1985 Part VII ACCOUNTS AND AUDIT Chapter I PROVISIONS APPLYING TO COMPANIES GENERALLY Accounting records Version in force: January 1, 2005 221.— Duty to keep accounting records (1) Every company shall keep accounting records which are sufficient to show and explain the company's transactions and are such as to— (a) disclose with reasonable accuracy, at any time, the financial position of the company at that time, and (b) enable the directors to ensure that any accounts required to be prepared under this Part comply with the requirements of this Act (and, where applicable, of Article 4 of the IAS Regulation). (2) The accounting records shall in particular contain— (a) entries from day to day of all sums of money received and expended by the company, and the matters in respect of which the receipt and expenditure takes place, and (b) a record of the assets and liabilities of the company. (3) If the company's business involves dealing in goods, the accounting records shall contain— (a) statements of stock held by the company at the end of each financial year of the company, (b) all statements of stocktakings from which any such statement of stock as is mentioned in paragraph (a) has been or is to be prepared, and (c) except in the case of goods sold by way of ordinary retail trade,statements of all goods sold and purchased, showing the goods and the buyers and sellers in sufficient detail to enable all these to be identified. (4) A parent company which has a subsidiary undertaking in relation to which the above requirements do not apply shall take reasonable steps to secure that the undertaking keeps such accounting records as to enable the directors of the parent company to ensure that any accounts required to be prepared under this Part comply with the requirements of this Act (and, where applicable, of Article 4 of the IAS Regulation). (5) If a company fails to comply with any provision of this section,every officer of the company who is in default is guilty of an offence unless he shows that he acted honestly and that in the circumstances in which the company's business was carried on the default was excusable. (6) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. 222.— Where and for how long records to be kept. (1) A company's accounting records shall be kept at its registered office or such other place as the directors think fit, and shall at all times be open to inspection by the company's officers. 238 (2) If accounting records are kept at a place outside Great Britain, accounts and returns with respect to the business dealt with in the accounting records so kept shall be sent to, and kept at, a place in Great Britain, and shall at all times be open to such inspection. (3) The accounts and returns to be sent to Great Britain shall be such as to— (a) disclose with reasonable accuracy the financial position of the business in question at intervals of not more than six months, and (b) enable the directors to ensure that the accounts required to be prepared under this Part comply with the requirements of this Act (and, where applicable, Article 4 of the IAS Regulation). (4) If a company fails to comply with any provision of subsections (1) to (3), every officer of the company who is in default is guilty of an offence, and liable to imprisonment or a fine or both, unless he shows that he acted honestly and that in the circumstances in which the company's business was carried on the default was excusable. (5) Accounting records which a company is required by section 221 to keep shall be preserved by it— (a) in the case of a private company, for three years from the date on which they are made, and (b) in the case of a public company, for six years from the date on which they are made. This is subject to any provision contained in rules made under section 411 of the Insolvency Act 1986 (company insolvency rules). (6) An officer of a company is guilty of an offence, and liable to imprisonment or a fine or both, if he fails to take all reasonable steps for securing compliance by the company with subsection (5) or intentionally causes any default by the company under that subsection. Approval and signing of accounts Version in force: January 1, 2005 233.— Approval and signing of accounts. (1) A company's annual accounts shall be approved by the board of directors and signed on behalf of the board by a director of the company. (2) The signature shall be on the company's balance sheet. (3) Every copy of the balance sheet which is laid before the company in general meeting, or which is otherwise circulated, published or issued, shall state the name of the person who signed the balance sheet on behalf of the board. (4) The copy of the company's balance sheet which is delivered to the registrar shall be signed on behalf of the board by a director of the company. (5) If annual accounts are approved which do not comply with the requirements of this Act (or, where applicable, of Article 4 of the IAS Regulation), every director of the company who is party to their approval and who knows that they do not comply or is reckless as to whether they comply is guilty of an offence and liable to a fine. For this purpose every director of the company at the time the accounts are approved shall be taken to be a party to their approval unless he shows that he took all reasonable steps to prevent their being approved. (6) If a copy of the balance sheet— (a) is laid before the company, or otherwise circulated, published or issued, without the balance sheet having been signed as required by this section or without the required statement of the signatory's name being included, or 239 (b) is delivered to the registrar without being signed as required by this section, the company and every officer of it who is in default is guilty of an offence and liable to a fine. Director's report Version in force: January 12, 2006 234. Duty to prepare directors' report (1) The directors of a company shall for each financial year prepare a report (a “directors' report”) complying with the general requirements of section 234ZZA and containing– (a) the business review specified in section 234ZZB, and (b) if section 234ZA applies to the report, the statement as to disclosure of information to auditors required by that section. (2) For a financial year in which– (a) the company is a parent company, and (b) the directors of the company prepare group accounts, the directors' report must be a consolidated report (a “group directors' report”) relating, to the extent specified in the following provisions of this Part, to the company and its subsidiary undertakings included in the consolidation. (2A) If section 234ZA applies to the report, it shall contain the statement required by subsection (2) of that section. (3) A group directors' report may, where appropriate, give greater emphasis to the matters that are significant to the company and its subsidiary undertakings included in the consolidation, taken as a whole. (5) If a directors' report does not comply with the provisions of this Part relating to the preparation and contents of the report, every director of the company who– (a) knew that it did not comply or was reckless as to whether it complied, and (b) failed to take all reasonable steps to secure compliance with the provision in question, is guilty of an offence and liable to a fine. Version in force: April 6, 2005 234ZA Statement as to disclosure of information to auditors (1) This section applies to a directors' report unless the directors have taken advantage of the exemption conferred by section 249A(1) or 249AA(1). (2) The report must contain a statement to the effect that, in the case of each of the persons who are directors at the time when the report is approved under section 234A, the following applies– (a) so far as the director is aware, there is no relevant audit information of which the company's auditors are unaware, and (b) he has taken all the steps that he ought to have taken as a director in order to make himself aware of any relevant audit information and to establish that the company's auditors are aware of that information. (3) In subsection (2) “relevant audit information” means information needed by the company's auditors in connection with preparing their report. 240 (4) For the purposes of subsection (2) a director has taken all the steps that he ought to have taken as a director in order to do the things mentioned in paragraph (b) of that subsection if he has– (a) made such enquiries of his fellow directors and of the company's auditors for that purpose, and (b) taken such other steps (if any) for that purpose, as were required by his duty as a director of the company to exercise due care, skill and diligence. (5) In determining for the purposes of subsection (2) the extent of that duty in the case of a particular director, the following considerations (in particular) are relevant– (a) the knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by the director in relation to the company, and (b) (so far as they exceed what may reasonably be so expected) the knowledge, skill and experience that the director in fact has. (6) Where a directors' report containing the statement required by subsection (2) is approved under section 234A but the statement is false, every director of the company who– (a) knew that the statement was false, or was reckless as to whether it was false, and (b) failed to take reasonable steps to prevent the report from being approved, is guilty of an offence and liable to imprisonment or a fine, or both. Part XI COMPANY ADMINISTRATION AND PROCEDURE Chapter III ANNUAL RETURN Version in force: February 1, 1991 363.— Duty to deliver annual returns. (1) Every company shall deliver to the registrar successive annual returns each of which is made up to a date not later than the date which is from time to time the company's “return date”, that is— (a) the anniversary of the company's incorporation, or (b) if the company's last return delivered in accordance with this Chapter was made up to a different date, the anniversary of that date. (2) Each return shall— (a) be in the prescribed form, (b) contain the information required by or under the following provisions of this Chapter, and (c) be signed by a director or the secretary of the company; and it shall be delivered to the registrar within 28 days after the date to which it is made up. (3) If a company fails to deliver an annual return in accordance with this Chapter before the end of the period of 28 days after a return date, the company is guilty of an offence and liable to a fine and, in the case of continued contravention, to a daily default fine. The contravention continues until such time as an annual return made up to that return date and complying with the requirements of subsection (2) (except as to date of delivery) is delivered by the company to the registrar. (4) Where a company is guilty of an offence under subsection (3), every director or secretary of the company is similarly liable unless he shows that he took all reasonable steps to avoid the commission or continuation of the offence. 241 (5) The references in this section to a return being delivered “in accordance with this Chapter” are— (a) in relation to a return made on or after1st October 1990, to a return with respect to which all the requirements of subsection (2) are complied with; (b) in relation to a return made before 1st October1990, to a return with respect to which the formal and substantive requirements of this Chapter as it then had effect were complied with, whether or not the return was delivered in time. Part XIV INVESTIGATION OF COMPANIES AND THEIR AFFAIRS; REQUISITION OF DOCUMENTS Requisition and seizure of books and papers Version in force: December 1, 2001 450.— Punishment for destroying, mutilating etc. company documents. (1) An officer of a company who— (a) destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of a document affecting, or relating to the company's property or affairs, or (b) makes, or is privy to the making of, a false entry in such a document, is guilty of an offence, unless he proves that he had no intention to conceal the state of affairs of the company or to defeat the law. (1A) Subsection (1) applies to an officer of an authorised insurance company which is not a body corporate as it applies to an officer of a company. (2) Such a person as above mentioned who fraudulently either parts with, alters or makes an omission in any such document or is privy to fraudulent parting with, fraudulent altering or fraudulent making of an omission in, any such document, is guilty of an offence. (3) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. (4) Sections 732 (restriction on prosecutions), 733 (liability of individuals for corporate default) and 734 (criminal proceedings against unincorporated bodies) apply to an offence under this section. (5) In this section “document” includes information recorded in any form. Version in force: April 6, 2005 451 Punishment for furnishing false information (1) A person commits an offence if in purported compliance with a requirement under section 447 to provide information– (a) he provides information which he knows to be false in a material particular; (b) he recklessly provides information which is false in a material particular. (2) A person guilty of an offence under this section is liable on conviction to imprisonment or a fine or to both. (3) Sections 732 (restriction on prosecutions), 733 (liability of individuals for corporate default) and 734 (criminal proceedings against unincorporated bodies) apply to an offence under this section. 242 Part XVI FRAUDULENT TRADING BY A COMPANY Version in force: February 1, 1991 458. Punishment for fraudulent trading. If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who was knowingly a party to the carrying on of the business in that manner is liable to imprisonment or a fine, or both. This applies whether or not the company has been, or is in the course of being, wound up. INSOLVENCY ACT 1986 Part III RECEIVERSHIP Chapter I RECEIVERS AND MANAGERS (ENGLAND AND WALES) Administrative receivers: ascertainment and investigation of company's affairs Version in force: June 1, 1991 47.— Statement of affairs to be submitted. (1) Where an administrative receiver is appointed, he shall forthwith require some or all of the persons mentioned below to make out and submit to him a statement in the prescribed form as to the affairs of the company. (2) A statement submitted under this section shall be verified by affidavit by the persons required to submit it and shall show— (a) particulars of the company's assets, debts and liabilities; (b) the names and addresses of its creditors; (c) the securities held by them respectively; (d) the dates when the securities were respectively given; and (e) such further or other information as may be prescribed. (3) The persons referred to in subsection (1) are— (a) those who are or have been officers of the company; (b) those who have taken part in the company's formation at any time within one year before the date of the appointment of the administrative receiver; (c) those who are in the company's employment, or have been in its employment within that year, and are in the administrative receiver's opinion capable of giving the information required; (d) those who are or have been within that year officers of or in the employment of a company which is, or within that year was, an officer of the company. In this subsection “employment” includes employment under a contract for services. 243 (4) Where any persons are required under this section to submit a statement of affairs to the administrative receiver, they shall do so (subject to the next subsection) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the administrative receiver. (5) The administrative receiver, if he thinks fit, may— (a) at any time release a person from an obligation imposed on him under subsection (1) or (2), or (b) either when giving notice under subsection (4) or subsequently, extend the period so mentioned; and where the administrative receiver has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it. (6) If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine. Schedule B1 ADMINISTRATION Part 7 PROCESS OF ADMINISTRATION Statement of company's affairs Version in force: September 15, 2003 47 (1) As soon as is reasonably practicable after appointment the administrator of a company shall by notice in the prescribed form require one or more relevant persons to provide the administrator with a statement of the affairs of the company. (2) The statement must— (a) be verified by a statement of truth in accordance with Civil Procedure Rules, (b) be in the prescribed form, (c) give particulars of the company's property, debts and liabilities, (d) give the names and addresses of the company's creditors, (e) specify the security held by each creditor, (f) give the date on which each security was granted, and (g) contain such other information as may be prescribed. (3) In sub-paragraph (1) “relevant person” means— (a) a person who is or has been an officer of the company, (b) a person who took part in the formation of the company during the period of one year ending with the date on which the company enters administration, (c) a person employed by the company during that period, and (d) a person who is or has been during that period an officer or employee of a company which is or has been during that year an officer of the company. (4) For the purpose of sub-paragraph (3) a reference to employment is a reference to employment through a contract of employment or a contract for services. 244 (5) In Scotland, a statement of affairs under sub-paragraph (1) must be a statutory declaration made in accordance with the Statutory Declarations Act 1835 (c. 62) (and sub-paragraph (2)(a) shall not apply). 48 (1) A person required to submit a statement of affairs must do so before the end of the period of 11 days beginning with the day on which he receives notice of the requirement. (2) The administrator may— (a) revoke a requirement under paragraph 47(1), or (b) extend the period specified in sub-paragraph (1) (whether before or after expiry). (3) If the administrator refuses a request to act under sub-paragraph (2)— (a) the person whose request is refused may apply to the court, and (b) the court may take action of a kind specified in sub-paragraph (2). (4) A person commits an offence if he fails without reasonable excuse to comply with a requirement under paragraph 47(1). Part IV WINDING UP OF COMPANIES REGISTERED UNDER THE COMPANIES ACTS Chapter X MALPRACTICE BEFORE AND DURING LIQUIDATION; PENALISATION OF COMPANIES AND COMPANY OFFICERS; INVESTIGATIONS AND PROSECUTIONS Offences of fraud, deception, etc. Version in force: June 1, 1991 206.— Fraud, etc. in anticipation of winding up. (1) When a company is ordered to be wound up by the court, or passes a resolution for voluntary winding up, any person, being a past or present officer of the company, is deemed to have committed an offence if, within the 12 months immediately preceding the commencement of the winding up, he has— (a) concealed any part of the company's property to the value of £500 or more, or concealed any debt due to or from the company, or (b) fraudulently removed any part of the company's property to the value of £500 or more, or (c) concealed, destroyed, mutilated or falsified any book or paper affecting or relating to the company's property or affairs, or (d) made any false entry in any book or paper affecting or relating to the company's property or affairs, or (e) fraudulently parted with, altered or made any omission in any document affecting or relating to the company's property or affairs, or 245 (f) pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for (unless the pawning, pledging or disposal was in the ordinary way of the company's business). (2) Such a person is deemed to have committed an offence if within the period above mentioned he has been privy to the doing by others of any of the things mentioned in paragraphs (c), (d) and (e) of subsection (1); and he commits an offence if, at any time after the commencement of the winding up, he does any of the things mentioned in paragraphs (a) to (f) of that subsection, or is privy to the doing by others of any of the things mentioned in paragraphs (c) to (e) of it. (3) For purposes of this section, “officer” includes a shadow director. (4) It is a defence— (a) for a person charged under paragraph (a) or (f) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to defraud, and (b) for a person charged under paragraph (c) or (d) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to conceal the state of affairs of the company or to defeat the law. (5) Where a person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1)(f), every person who takes in pawn or pledge, or otherwise receives, the property knowing it to be pawned, pledged or disposed of in such circumstances, is guilty of an offence. (6) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. (7) The money sums specified in paragraphs (a) and (b) of subsection (1) are subject to increase or reduction by order under section 416 in Part XV. 207.— Transactions in fraud of creditors. (1) When a company is ordered to be wound up by the court or passes a resolution for voluntary winding up, a person is deemed to have committed an offence if he, being at the time an officer of the company— (a) has made or caused to be made any gift or transfer of, or charge on, or has caused or connived at the levying of any execution against, the company's property, or (b) has concealed or removed any part of the company's property since, or within 2 months before, the date of any unsatisfied judgment or order for the payment of money obtained against the company. (2) A person is not guilty of an offence under this section— (a) by reason of conduct constituting an offence under subsection (1)(a) which occurred more than 5 years before the commencement of the winding up, or (b) if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud the company's creditors. (3) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. 208.— Misconduct in course of winding up. (1) When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company, commits an offence if he— (a) does not to the best of his knowledge and belief fully and truly discover to the liquidator all the company's property, and how and to whom and for what consideration and when the company 246 disposed of any part of that property (except such part as has been disposed of in the ordinary way of the company's business), or (b) does not deliver up to the liquidator (or as he directs) all such part of the company's property as is in his custody or under his control, and which he is required by law to deliver up, or (c) does not deliver up to the liquidator (or as he directs) all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up, or (d) knowing or believing that a false debt has been proved by any person in the winding up, fails to inform the liquidator as soon as practicable, or (e) after the commencement of the winding up, prevents the production of any book or paper affecting or relating to the company's property or affairs. (2) Such a person commits an offence if after the commencement of the winding up he attempts to account for any part of the company's property by fictitious losses or expenses; and he is deemed to have committed that offence if he has so attempted at any meeting of the company's creditors within the 12 months immediately preceding the commencement of the winding up. (3) For purposes of this section, “officer” includes a shadow director. (4) It is a defence— (a) for a person charged under paragraph (a), (b) or (c) of subsection (1) to prove that he had no intent to defraud, and (b) for a person charged under paragraph (e) of that subsection to prove that he had no intent to conceal the state of affairs of the company or to defeat the law. (5) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. 209.— Falsification of company's books. (1) When a company is being wound up, an officer or contributory of the company commits an offence if he destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company with intent to defraud or deceive any person. (2) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. 210.— Material omissions from statement relating to company's affairs. (1) When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company, commits an offence if he makes any material omission in any statement relating to the company's affairs. (2) When a company has been ordered to be wound up by the court, or has passed a resolution for voluntary winding up, any such person is deemed to have committed that offence if, prior to the winding up, he has made any material omission in any such statement. (3) For purposes of this section, “officer” includes a shadow director. (4) It is a defence for a person charged under this section to prove that he had no intent to defraud. (5) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. 211.— False representations to creditors. (1) When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company— 247 (a) commits an offence if he makes any false representation or commits any other fraud for the purpose of obtaining the consent of the company's creditors or any of them to an agreement with reference to the company's affairs or to the winding up, and (b) is deemed to have committed that offence if, prior to the winding up, he has made any false representation, or committed any other fraud, for that purpose. (2) For purposes of this section, “officer” includes a shadow director. (3) A person guilty of an offence under this section is liable to imprisonment or a fine, or both. CHILD SUPPORT ACT 1991 Abrufbar unter: http://www.opsi.gov.uk/acts/acts1991/Ukpga_19910048_en_1. htm SOCIAL SECURITY ADMINISTRATION ACT 1992 Abrufbar unter: http://www.opsi.gov.uk/acts/acts1992/Ukpga_19920005_en_1. htm SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 Abrufbar unter: http://www.opsi.gov.uk/acts/acts1992/Ukpga_19920004_en_1. htm FINANCE ACT 2000 Abrufbar unter: http://www.opsi.gov.uk/acts/acts2000/20000017.htm COMPANIES ACT 2006 Abrufbar unter: http://www.opsi.gov.uk/acts/acts2006/20060046.htm FRAUD ACT 2006 Abrufbar unter: http://www.opsi.gov.uk/acts/acts2006/20060035.htm

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Zusammenfassung

Das Werk befasst sich mit Fragen zur möglichen Strafbarkeit des directors einer englischen Limited nach deutschem Strafrecht und damit mit einem ebenso aktuellen wie vielschichtigen Problem, dessen praktische Relevanz und Zukunftsorientierung nicht genug betont werden kann. Anstoß der Überlegungen sind die Urteile des EuGH in den Rechtssachen „Centros“, „Überseering“ und „Inspire Art“, in denen die Bedeutung der Niederlassungsfreiheit insbesondere in Bezug auf die inländische Anerkennung von sog. Scheinauslandsgesellschaften behandelt werden. Die Autorin analysiert die Auswirkungen dieser viel beachteten Rechtsprechung auf das deutsche Strafrecht. Im Zuge dessen werden ausgewählte deutsche Strafnormen auf ihre Relevanz im Lichte der EuGH-Rechtsprechung näher untersucht. Ferner gibt sie einen Überblick über die Haftungsmöglichkeiten eines directors einer Limited nach englischem Gesellschaftsrecht und untersucht intensiv verschiedene Haftungsvorschriften nach englischem Strafrecht. Schließlich geht das Buch auf die Reform des GmbH-Gesetzes ein und schließt mit einer Stellungnahme zu den relevanten geplanten Änderungen.