CONSUMER COUNCIL ORDINANCE ——附加英文版
Hong Kong
CONSUMER COUNCIL ORDINANCE
(CHAPTER 216)
CONTENTS
ion
I PRELIMINARY
hort title
nterpretation
II INCORPORATION AND POWERS
ncorporation of Consumer Council
unctions of Council
owers of Council
embership of Council
eetings of Council
ommittees
isclosure of member's interest
Appointment of staff and advisers
Documents of Council
III FINANCIAL
Resources of Council
Borrowing powers
Investment of funds
Estimates
Accounts, audit and annual report
IV GENERAL
Council not servant or agent of Crown
Governor may give directions
Protection of members of Council and committees
Prohibition of exploitation of the Council's name for
advertisement
oses
Transitional provisions
dule
Whole document
ncorporate the Consumer Council, to define its functions and
powers,
egative personal liability of members and employees for the
Council's
ts committees' acts or omissions, and for connected purposes.
July 1977] L. N. 167 of 1977
PART I PRELIMINARY
hort title
Ordinance may be cited as the Consumer Council Ordinance.
nterpretation
his Ordinance, unless the context otherwise requires--
ncil" means the Consumer Council incorporated by section 3 (1);
ancial year" means each period of 12 months ending with 31 March;
ber" means a member of the Council.
PART II INCORPORATION AND POWERS
ncorporation of Consumer Council
The Consumer Council existing at the commencement of this
Ordinance is
by created a body corporate consisting of the persons who from
time to
hold office as members of the Council.
The Council shall have perpetual succession and a common
seal and
l be capable of suing and being sued and of doing and suffering
all
other acts and things as bodies corporate may lawfully do and
suffer.
The Council shall continue to be known in the Chinese language
as.
unctions of Council
The functions of the Council are to protect and promote the
interests
onsumers of goods and services and purchasers, mortgagors and
lessees
mmovable property by--
collecting, receiving and disseminating
rmation concerning goods, services and immovable property;
receiving and examining complaints by and giving advice to
consumers
oods and services and purchasers, mortgagors and lessees of
immovable
erty;
taking such action as it thinks justified by information
in its
ession, including tendering advice to the Government or to any
public
cer;
encouraging business and professional associations to
blish codes of practice to regulate the activities of their
members;
undertaking such other functions as the Council may adopt
with the
r approval of the Governor in Council.
The Governor may be notice in writing to the Council
declare any
s, services or immovable property or class of goods,
services or
vable property to be outside the scope of the Council's
functions
r subsection (1).
In subsection (1) and in section 5 (2) (c) "goods and services"
does
include goods and services which are--
supplied by--
the Government, the Urban Council or the Regional Council; or
(Amended
f 1985 s. 60)
a body mentioned in the Schedule; or
made the subject of a declaration under subsection (2).
The Governor in Council may, by order published in the Gazette,
amend
Schedule. (Amended 5 of 1992 s. 2)
owers of Council
The Council may do such things as are reasonably necessary to
enable
o carry out its functions.
Without restricting the generality of subsection (1), the Council
may
arrying out its functions--
acquire, hold and dispose of all kinds of property
movable and
vable and in any manner which it thinks fit;
enter into any contract;
undertake the testing and examination of goods and
services and
ection of immovable property; (Amended 5 of 1992s. 3)
produce or distribute, by way of sale or otherwise, any
publication
h is of interest to consumers;
do any thing which it may do under this ordinance in
association or
peration with any other person or sponsor any other person to do
that
g;
charge for the use of any facility or service provided by the
Council;
with the prior approval of the Governor, become a member
of or
liate to any international body concerned with consumer matters.
embership of Council
The Council shall consist of the following members--
a Chairman who shall be appointed by the Governor for a
term not
eding 2 years;
a Vice-Chairman who shall be appointed by the Governor for a term
not
eding 2 years; and (Replaced 28 of 1985 s. 2)
not more than 20 other persons each of whom shall be appointed
by the
rnor for a term not exceeding 2 years. (Replaced 28 of 1989 s.
2)
The Chairman, Vice-Chairman and any other member
appointed under
ection (1) (c) may be reappointed upon expiry of their
respective
s of office. (Amended 28 of 1985 s. 2)
The Chairman, Vice-Chairman and any other member
appointed under
ection (1) (c) may at any time-- (Amended 28 of 1985 s. 2)
resign his office by notice to the Governor; or
be removed therefrom by the Governor for permanent incapacity or
other
icient cause, and upon such resignation or removal the term for
which
as appointed shall be deemed to have expired.
Where the Chairman, Vice-Chairman or any other member appointed
under
ection (1) (c) is precluded by temporary incapacity or other
cause
exercising his functions as such for any period the
Governor may
int another person to act in place of the Chairman Vice-
Chairman or
r member during such period with all such rights, powers,
duties or
ilities as if he had been appointed under subsection (1). (Amended
28
985s. 2)
(Replaced 28 of 1985s. 2)
Where any question arises under subsection (3) or (4) as to
whether
incapacity or cause exists or whether any incapacity is
temporary or
anent or any cause sufficient, the decision of the Governor
thereon
l be final.
eetings of Council
Meetings of the Council shall be held at such times and places
as the
cil, the Chairman or in his absence, the Vice-Chairman may from
time
ime appoint.
The following procedural provisions shall apply to
y meeting of the Council and subject thereto the Council may
regulate
own procedure--
at meetings of the Council 11 members shall form a quorum;
(Replaced
f 1989 s. 3. Amended 5 of 1992 s. 4)
the Chairman or in his absence, the Vice-Chairman shall preside
or, if
are absent or disqualified under section 9 (c), the members
present
l appoint one of their number to preside;
every question shall be determined by a majority of votes
of the
ers present and voting thereon;
in the event of an equality of votes the member presiding shall
have a
ing vote in addition to his ordinary vote.
nded 28 of 1985 s. 3)
ommittees
The Council may appoint committees and may delegate to
them the
cise and performance of any of its powers and functions except
this
r of delegation.
Persons who are not members of the Council are
ible for appointment to committees.
Subject to the terms of any delegation by the
Council, every
ittee--
may exercise and perform the delegated powers and functions
the same effect as if it were the Council itself;
shall be presumed to be acting in accordance with the terms of
the
gation in the absence of proof to the contrary;
may regulate its own procedure.
isclosure of member's interest
member of the Council, or of any committee of the Council,
has a
ct or indirect commercial interest in any matter under discussion
at a
ing of the Council or of the committee, being an interest greater
than
which he has as a member of the general public, the
following
isions shall apply--
he shall disclose the nature of his interest at the meeting;
the disclosure shall be recorded in the minutes;
where the disclosure is made by the member presiding, he shall
vacate
chair during the discussion;
the member (including one who has vacated the chair under
paragraph
shall, if so required by the member presiding, withdraw
from the
ing during the discussion and shall not in any case,
except as
rwise determined by the member presiding, vote on any
resolution
erning the matter or be counted for the purpose of establishing
the
tence of a quorum.
Appointment of staff and advisers
Subject to subsection (4), the Council shall appoint a person to
hold
office of Chief Executive. (Amended 28 of 1985 s. 4)
The Council may appoint such other employees as it thinks
fit and
ect to subsection (4), determine all matters relating
to their
neratior and terms and conditions of appointment or employment.
The Council may engage the services of technical and
professional
sers in such manner and on such terms and conditions as it thinks
fit.
The Council shall obtain the prior approval of the Governor to--
any appointment proposed to be made under subsection (1) and the
terms
conditions thereof;
the suspension or dismissal of the Chief Executive;
the salary or salary scale (including allowances and other
pecuniary
fits) and conditions of employment applicable to the Chief
Executive
every other employee or class employee, and any variation
thereof.
nded 28 of 1985 s. 4)
No person shall be employed by the Council otherwise than on the
salar
alary scale or on the conditions of employment applicable to that
pers
oved by the Governor under subsection (4).
Documents of Council
The Council may make and execute all such documents as may
expedient
or conducive to the exercise and performance of its power
functions
duties.
The fixing of the seal of the Council to any document
l--
be authorized by resolution of the Council; and
be authenticated by the signatures of any 2 members
authorize by
lution of the Council, either generally or specially, to ao for
that
ose.
Any document purporting to be duly executed under the seal
of the
cil shall, unless the contrary is proved, be considered to be
duly
uted.
Any contract or instrument which if entered into or executed
by a
on not being a body corporate would not be required to be in the
form
deed may be entered into or executed on behalf of the Council by
any
on generally or specially authorized by the Council for that
purpose.
PART III FINANCIAL
Resources of Council
The Governor may, out of money appropriated for the purpose
by the
slative Council, authorize payment to the Consumer Council
of such
nts as he thinks fit.
The resources of the Council shall consist
all money received by the Council pursuant to subsection (1);
money paid to the Council by way of donations, fees,
subscriptions,
and interest;
all other money and property, including accumulations of
income,
ived by the Council for its purposes.
Borrowing powers
Council may, with the approval of the Financial Secretary,
borrow or
rwise raise money and charge all or any part of its
property as
rity therefor.
Investment of funds
money of the Council that is not immediately required
shall be
sted--
on fixed deposit in any bank or savings bank approved by the
ncial Secretary, either generally or in any particular case, for
the
ose; or
in such other forms of investment as the Financial
Secretary may
ove.
Estimates
Council shall in each financial year adopt estimates of
income and
nditure for the ensuing financial year and, before a date
to be
inted by the Financial Secretary, send them to the Governor for
his
oval together with a programme of its proposed activities
for the
ing financial year.
Accounts, audit and annual report
The Council shall keep proper accounts and proper records in
relation
eto and shall within 3 months after the expiry of a financial year,
or
further period as the Financial Secretary may allow,
prepare a
ement of the accounts of the Council, which statement shall
include an
me and expenditure account and a balance sheet.
The Council
l, subject to subsection (3), appoint an auditor, who
shall be
tled to have access at any time to all books of account, vouchers
and
r financial records of the Council and to require such information
and
anations relating thereto as he thinks fit.
The Council shall obtain the prior approval of the Financial
Secretary
ny appointment proposed to be made under subsection (2).
The auditor shall, as soon as is practicable, audit the
accounts
ired by subsection (1) and shall submit a report thereon
to the
cil.
The Council shall within 3 months after the receipt by it
of the
tor's report in respect of its accounts for a financial
year, or
in such further period as the Financial Secretary may allow,
furnish--
a report on the affairs of the Council for that year;
a copy of its accounts therefor; and
the auditor's report on the accounts, to the Governor who shall
cause
same to be tabled in the Legislative Council.
PART IV GENERAL
Council not servant or agent of Crown
Council is not a servant or agent of the Crown and does not enjoy
any
us, immunity or privilege of the Crown.
Governor may give directions
The Governor may, if he considers that the public
interest so
ires, give to the Council such directions as he thinks
fit with
ect to the exercise and performance by the Council of its
powers,
tions and duties under this Ordinance, either generally or
in any
icular case.
The Council shall comply with any direction given to
it under
ection (1).
Protection of members of Council and committees
No member or employee of the Council or of any committee
of the
cil shall be personally liable for any act done or default made--
by the Council; or
by any committee of the Council, acting in good faith in the course
of
operations of the Council or of the committee.
The protection hereby conferred on members and employees
of the
cil or of a committee in respect of any act or default shall not
in
way affect any liability of the Council for that act or default.
Prohibition of exploitation of the Council's name for
advertisement
oses
No person shall, with a view to promoting or disparaging any
s, services or immovable property or promoting the image
of any
on, publish or cause to be published any advertisement which
either
essly or by implication makes reference to--
the Council;
any committee, member, agent or employee of the Council;
the Council's publication or finding of tests or surveys
conducted by
n behalf of the Council; or
any other information published by the Council, without
written
ent of the Council.
Any person who contravenes subsection (1) commits an offence
and is
le to a fine of $ 100,000.
For the purpose of subsection (1) "advertisement" may be
constituted
ny words, whether written or spoken, or any picture, drawing,
visual
e, figure or article--
appearing in any publication; or
brought to the notice of the public or any section of the public
in
other way. (Replaced 5 of 1992 s. 5)
Transitional provisions
All property of whatever kind and whether movable or immovable
vested
r belonging to the Consumer Council existing at the
commencement of
Ordinance shall as from that date vest in or belong to that
Council
ts corporate capacity without any further assurance.
All obligations and liabilities of the said Consumer Council
are as
the commencement of this Ordinance the obligations and
liabilities of
Council in its corporate capacity.
Where anything has been commenced by or under the authority
of the
Consumer Council before the commencement of this Ordinance such
thing
be carried on any completed by the Council in its corporate
capacity.
Every person who immediately before the commencement of this
Ordinance
s an appointment as Chairman, Executive Director or a member of
the
Consumer Council is, as from such commencement but subject to
the
s of his appointment, the Chairman, Executive Director, or a
member of
Council, as the case may be, for the purposes of this Ordinance.
Notwithstanding the definition of "financial year" in section
2 the
od between the commencement of this Ordinance and 31 March 1978
shall
eemed to be a financial year.
No stamp duty shall be payable in respect of any transfer of
property
r this section.
SCHEDULE
Television Limited
a Light and Power Company, Limited
a Motor Bus Company, Limited
Cross-Harbour Tunnel Company, Limited
Marketing Organization
Kong Air Cargo Terminals Limited
Hong Kong and Yaumati Ferry Company Limited
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司法实践中,关于不动产能否成为贪污罪的犯罪对象问题,曾有如下三种认识:一是肯定说,认为公共财物中的不动产也是贪污犯罪侵害的对象。动产与不动产是各种财物在客观上的物质表现形态,其本质并未改变,刑法中规定的公共财物并没有限制为动产,也没有将不动产排除在外,属于公共财产的不动产自然能够成为贪污犯罪的对象。二是否定说,认为贪污罪的对象只限于动产。之所以不动产不能成为贪污罪的主体,是因为不动产不像动产那样可以移动,可以被行为人所占有支配,而不动产的转移必须经过法定的登记程序,不动产的产权只有经过法定程序即通过法定的登记程序才能对第三方产生法律效力。三是犹豫说,认为对不动产是否属于贪污罪的对象,不明确表态,而是概括地规定为财物。
我们认为,不动产与动产均可成为贪污罪的犯罪对象,其具体理由是:
1.刑法关于贪污罪对象“公共财物”的性质,并没有“动产”的限定,这意味着在逻辑上可以将不动产置于贪污罪的对象中去理解。根据刑法第三百八十二条规定,贪污罪的犯罪对象是公共财物。根据刑法第九十一条的规定,“公共财产”包括国有财产、劳动群众集体所有的财产、用于扶贫和其他公益事业的社会捐助或者专项基金以及在国家机关、国有公司、企业、事业单位和人民团体管理、使用或者运输中的私人财产。可见,刑法就第三百八十二条规定的“公共财物”的内涵和外延均未将不动产排除在外。在司法实践中,诈骗罪、侵占罪等的犯罪 对象都包括不动产。同样,贪污罪究其犯罪行为,除利用职务上的便利外,与诈骗犯罪等一般财产犯罪是同样的,而且因为其有着职务便利可以利用,故其犯罪通常情况下更容易得逞,因而公有房屋可以成为贪污罪的犯罪对象。在我国,虽然不动产的所有权关系必须通过严格的法律手续才可能将其固定下来。如房屋,若不提交有关财产证明经房地产主管部门审查确认后是无法领取房屋产权证的,从而也就难以达到非法占有的目的。但通过采取伪造、涂改、假冒有关证明文件的手段,欺骗产权登记机关而达到变非法为合法占有不动产的目的也并非不可做到。对这种行为,如果是国家工作人员利用职务之便所为,显然应以贪污罪处罚
2.从贪污行为的特性或者说行为的类型性特征分析考查,国家工作人员或者受委托管理、经营国有财产的人员,利用职务便利非法侵占不动产,存在现实可能性。贪污罪在客观上是利用职务便利、通过“侵吞、窃取、骗取”等非法手段侵占财物的行为,就其中的“窃取”、“骗取”行为方式而言,与普通盗窃、普通诈骗中行为人事先并不持有所要秘密窃取或者骗取的财物不同、贪污罪中的行为人实际上一般都因为其职务、职责而对公共财物拥有支配权、调拨权、管理权,如对公有房屋行使实际控制权,行为人完全可以在支配管理的情况下,将不动产的所有权转归己有;就其中的“侵吞”行为方式而言,则和普通侵吞、职务侵吞一样,行为人始终拥有着主管、管理、经手单位不动产的职权。
此外,在司法实践中,国家工作人员利用职务上的便利非法占有不动产的行为也偶有发生,这些行为与利用职务上的便利非法占有动产行为一样,都侵犯了国有单位的公共财产所有权,触及刑法设立贪污罪所要保护的法益,因而有必要将不动产纳入贪污罪的对象范围。
景县人民检察院 姚艳萍 霸小燕