3. Dez. Attribut auf diesen Eintrag Bezug nimmt, vorgelegt werden müssen (Art. 5 Abs. 2), so bleibt Artikel 36 der Handelsregisterverordnung vom 7. Fr.; – Uhr), Fax: 99 96, Internet: Pa. Iv. .. Totalrevision der Handelsregisterverordnung (HRegV) Behörde. Several laws, in particular, the Criminal Code and the Code of Administrative Offences . material criminal law), administrative procedure, vast parts of civil law , the Commercial Registration Ordinance [Handelsregisterverordnung].
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Skip to main content. Log In Sign Up. The author outlines contemporary criminal legislation of Switzerland. Main attention is paid to the description of existing types of legal persons and to the order of legal persons state registration. The functioning of commercial legal entities in Switzerland is regulated by the Civil Code1 and the Code of Obligations 2. The basis of legal regulation are Articles of the Code of Obligations.
These business enterprises represent an association of two persons at the minimum; one of them bears full responsibility by all his property. The investors of such legal entities bear responsibility within the limits of the sum of their contribution into the aggregate capital of the partnership. These companies are regulated by Articles of the Code of Obligations. No less than 50, Swiss francs should be brought in the authorized capital in the form of cash and property contributions.
The nominal price of a stock cannot be less than 1 Swiss centime. Joint-stock company bodies are: The general meeting takes decisions about making changes in the charter; forming of the administrative board and the auditing department; the confirmation of the annual report; and a profit distribution.
The administrative board exercises the direction of the routine affairs, keeps supervision, organizes the accounting and so on. The auditing department examines the accounting and annual report for compliance with the law and the charter. Joint-stock company bodies bear three kinds of responsibility: Their functioning is regulated by the Code of Obligations Articles The amendments into the norms of this act came into force since January 1st, Now the authorized capital of the limited liability company should exceedSwiss francs and is to be brought at once in full volume.
Both one and some persons or trading societies Handelsgesellschaften can be founders.
The responsibility for obligations of this kind of legal entity is carried only within the limits of its property. An auditing department can be established in the limited liability company. They are described in Articles of the Code of Obligations. A cooperative society is a legal entity that represents an association of unlimited number of people or trading companies for the purpose of mutual assistance.
Seven participants as the minimum are required for founding a cooperative society. Cooperative society bodies are: Members of the cooperative society are jointly and severally liable within the limits of their corporate shares. But under their commercial names they may accrue rights, enter obligations and be complainants and respondents in court.
Assets of hanxelsregisterverordnung both kinds of enterprises do not belong to the partnership on the whole, but to partners in common. Although the general partnership is not a legal entity, it may have isolated property and act in court in protection of their founders, at the same time handelsregisterverrdnung the partnership but partners are the bearers of their concrete rights and duties.
Management of affairs can be performed by any person whose name is put in the trade register. To set apart the separate property of the partnership is possible in a limited partnership. The following organizations are noncommercial. Fund functioning is regulated by Articles of the Civil Code. The Swiss law about funds is considered as one of the most liberal in the world, so funds are widespread.
It may be spent on definite purposes. At fund registration, the mention of the purpose of its functioning and its authorized property is necessary. Sincefunds are made responsible for their accounting and establishing of an auditing department. Associations and funds are formed by acceptance of the charter containing the necessary information concerning the purposes, resources and the organization handdlsregisterverordnung.
Till January 1st, the registration of organizations was regulated by The Regulation of Commercial Register Since The Regulation of Commercial Register afmin effective. The registration in the Commercial Register is obligatory for all above- wdmin legal entities with the exception of public associations noninvolved in any commercial activity. They must be registered in the Commercial Register if they carry out a commercial activity.
The register in Switzerland is carried out at the cantonal level, except for the canton Valais. In this canton, the register is not centralized, and it is divided into three parts. The information arrived in the Register is centralized and checked at the federal level by the Federal Agency of commercial registration 5. If it is false or inexact, the registration personnel orders the company to correct discrepancy.
Otherwise, the company is considered as not created and a registered organization can be liquidated. At registration, each legal entity receives its own identification number6. The Commercial Register contains the most important information on each enterprise, including the trading name, the official address of the registration of the company, its purpose, names, addresses and its belonging to a state.
The Commercial Register is generally accessible. On the federal web site, it is possible to search by various criteria and keywords, including the names of people, its constitutive bodies and some persons authorized to subscribe their name to a document.
More detailed information is necessary for public joint-stock companies, the companies handelsregistervreordnung limited liability, limited partnerships.
The following information is necessary: In case of the creation of private limited liability companies and partnerships, the register also includes admkn of members or partners. The transfer of shares in private limited liability companies should also be included in the commercial register.
This information must be accessible to the third parties. All companies are to report about any changes of the information concerning the enterprise. According to the Resolution the yearthe Federal Ministry of Justice and Police77 carries out the general control in this sphere and may exercise jurisdiction.
According to Articles 67 and 67a of the Penal Handelsregisterverordunng of Switzerland 88, the court can apply disqualification in full or in part to the persons who make offences during their professional, industrial or commercial actions and who are—as a result—sentenced to imprisonment more than for six months really or conditionallyor to the penalty more than for hzndelsregisterverordnung days.
It includes an interdiction to carry out similar activity for the term from six months till five years if there is a reason to suspect the occurrence of the further offences. Handelsregistterverordnung additional punishment allows the court to impose a temporary ban for any professional work, including activity of the director of the company or the manager of this or that legal person. This law is applicable to all criminal offences. Courts inform the Register about the announcement of any professional disqualification.
The bodies that parole a person are responsible for the maintenance of effective execution of these sanctions. In any case, non- observance of professional disqualification represents a crime according to Article of the Penal Code.
The bodies that parole a defendant on bail must inform the criminal judge about it. The bodies that supervise the financial market can remove a person accused of offences connected with actions in financial sector from an executive position of the companies which they observe. According to item 1 of Article of the Penal Code, an enterprise can bear the criminal responsibility when it is impossible to establish the certain offender because of an inadequate character of execution of duties.
In item 2 of Article of the Penal Code, they list the crimes for which the enterprise can bear also a criminal responsibility, if it has not undertaken all reasonable and necessary steps for offence prevention. At unity of principles of conducting criminal case and if Articles and a obviously did not establish other, guilt of any of 50 holders of the securities specified in Article of the Code of Obligations, providing the official right to a share in profit or at liquidation, or the preferential right to subscribe for new shares is pursued under the law concerning the given persons, and the criminal responsibility of their employer will be defined within the limits of the same criminal case.
Thus, the criminal responsibility of legal entities does not exclude the possibility of criminal prosecution of natural persons. Item 1 of Article of the Penal Code concerns all dangerous crimes and crimes of middle gravity while item 2 concerns only corruption actions of officials of Switzerland or other countries, expressed in protection, money-laundering, corruption actions in a private sector, in activity of the organized criminal groups and in terrorism financing.
Article of the Penal Code considers as criminal corruption actions made within the limits of the enterprise by any category of employees, including ordinary employees.
In other words, it is not obligatory that the senior management has been involved in a crime or that the enterprise has benefited from criminal deeds. Article of the Penal Code specifies the penalty up to 5 million Swiss francs as a punishment for legal entities.
The court should take into consideration gravity of damage, the organizational character of inadequate execution of duties regarding the enterprise, the caused damage and a financial solvency of the company. Besides the penalty, additional measures confiscation and judgment promulgation can be applied to legal entities. Reorganization and other actions will not allow firms to avoid prosecution or sanctions. But the companies, which stopped their activity are removed from the Register, do not exist and cannot be pursued in accordance with the criminal law any more.
At the same time, the Swiss legislation on registration of crimes does not provide the possibility to register the illegal acts made by the legal entity.
Such offences are not registered in the Commercial register. On the other hand, there is no additional sanction such as exclusion from the procedure of making an application for state contract, as well as there is no true account of the legal entities brought to criminal responsibility. In practice, the absence of such a register makes extremely difficult or even impossible to apply the given norms to the legal entities that committed similar crimes repeatedly, or to check their disqualification, for example in the form of exclusion from the procedure of making an application for a state contract.
It appears that the Swiss legislation in this sphere could be strengthened by additional measures: The federal authorities settled in detail this interdiction in two circulars from 6. Their regulations can be found in the legislation of all cantons. Tax authority carries out the audit of accounts; requests the confirming documentation regularly or regarding certain incomes and expenses, both concerning the credit and the debit. The bodies which are responsible for tax levy can exercise inspections, carry out audits and examine accounts and confirm documents at the place in question.
The tax legislation does not demand the tax authority to inform about offences they find out during tax checks. However, in the majority of cantons to inform about serious offences by the officials is standard so do officials from taxation authority.
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Other cantonal and federal officials who do not submit to this legal obligation but find out solid evidences of infringement in tax deductions, can inform authorities which carry out criminal prosecution; by that means they are exonerated from taxation confidentiality. According to Article of the Code of Obligations, all the persons registered in the Commercial register should maintain accounts and also 10 http: The associations with the turnover less thanSwiss francs are not required to be registered in the Commercial register, but they are obliged to keep accounts according to Article 69a of the Civil Code.
The rules of execution of accounting are regulated in Articles 52 and 57 of the Civil Code. According to Article of the Penal Code of Switzerland, anyone who breaks the rules of keeping accounting both deliberately and accidentally is punished by a monetary penalty.
Besides, according to Article of the Penal Code false documents having legal grounds 13falsification of accounts or confirming documents provides imprisonment for the term of five years or a monetary penalty.
This offence concerns incomplete accounts, too. If the false documents having legal grounds are a means of perpetration of a crime or a means of concealment of another offence which does not include forgery any moreArticle of the Penal Code should be applied in addition.