Corporations Act. Australia
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Название: Corporations Act

Автор: Australia

Издательство: Проспект

Жанр: Юриспруденция, право

Серия:

isbn: 9785392086429

isbn:

СКАЧАТЬ Notice of the making, revocation or suspension of the order must be published in the Gazette.

      Strict liability offences

      (9) An offence based on subsection (1), (3) or (4) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      Part 2D.6 — Disqualification from managing corporations

      206A Disqualified person not to manage corporations

      (1) A person who is disqualified from managing corporations under this Part commits an offence if:

      (a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

      (b) they exercise the capacity to affect significantly the corporation’s financial standing; or

      (c) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation:

      (i) knowing that the directors are accustomed to act in accordance with the person’s instructions or wishes; or

      (ii) intending that the directors will act in accordance with those instructions or wishes.

      Note: Under section 1274AA, ASIC is required to keep a record of persons disqualified from managing corporations.

      (1A) For an offence based on subsection (1), strict liability applies to the circumstance, that the person is disqualified from managing corporations under this Part.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      (1B) It is a defence to a contravention of subsection (1) if the person had permission to manage the corporation under either section 206F or 206G and their conduct was within the terms of that permission.

      Note: A defendant bears an evidential burden in relation to the matters in subsection (1B), see subsection 13.3(3) of the Criminal Code.

      (2) A person ceases to be a director, alternate director or a secretary of a company if:

      (a) the person becomes disqualified from managing corporations under this Part; and

      (b) they are not given permission to manage the corporation under section 206F or 206G.

      Note: If a person ceases to be a director, alternate director or a secretary under subsection (2) the company must notify ASIC (see subsection 205B(5)).

      206B Automatic disqualification

      Convictions

      (1) A person becomes disqualified from managing corporations if the person:

      (a) is convicted on indictment of an offence that:

      (i) concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of the corporation; or

      (ii) concerns an act that has the capacity to affect significantly the corporation’s financial standing; or

      (b) is convicted of an offence that:

      (i) is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or

      (ii) involves dishonesty and is punishable by imprisonment for at least 3 months; or

      (c) is convicted of an offence against the law of a foreign country that is punishable by imprisonment for a period greater than 12 months.

      The offences covered by paragraph (a) and subparagraph (b)(ii) include offences against the law of a foreign country.

      (2) The period of disqualification under subsection (1) starts on the day the person is convicted and lasts for:

      (a) if the person does not serve a term of imprisonment—5 years after the day on which they are convicted; or

      (b) if the person serves a term of imprisonment—5 years after the day on which they are released from prison.

      Bankruptcy or personal insolvency agreement

      (3) A person is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.

      (4) A person is disqualified from managing corporations if:

      (a) the person has executed a personal insolvency agreement under:

      (i) Part X of the Bankruptcy Act 1966; or

      (ii) a similar law of an external Territory or a foreign country; and

      (b) the terms of the agreement have not been fully complied with.

      (5) A person is disqualified from managing corporations at a particular time if the person is, at that time, disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 6‑5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

      Foreign court orders

      (6) A person is disqualified from managing corporations if the person is disqualified, under an order made by a court of a foreign jurisdiction that is in force, from:

      (a) being a director of a foreign company; or

      (b) being concerned in the management of a foreign company.

      Definitions

      (7) In this section:

      foreign jurisdiction means a foreign country, or part of a foreign country, prescribed by the regulations as a foreign jurisdiction for the purposes of this section.

      206BA Extension of period of automatic disqualification

      (1) This section applies if:

      (a) under subsection 206B(1); or

      (b) as a result of the operation of subsection 279‑5(1) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and subsection 206B(5) of this Act;

      a person is disqualified from managing corporations on being convicted of an offence.

      (2) On application by ASIC, the Court may extend by up to an additional 15 years the period of disqualification.

      (3) ASIC must apply:

      (a) before the period of disqualification begins; or

      (b) before the end of the first year of the disqualification.

      (4) СКАЧАТЬ