SECRET COMMISSIONS ACCORDING TO THE

LAW OF GERMANY.

[Contributed by ERNEST SCHUSTER, ESQ.]

THERE are no general provisions about "secret commissions" in the German Criminal Code The following provisions relating to special cases may, however, be of interest in this connection :

I. PROVISIONS RELATING TO OFFICIALS.

The acceptance of a secret commission on the part of an official in the service of the Empire or of any German state would constitute an offence under ss. 331, 332, and 333 of the Criminal Code. It is provided by these sections that:

(a) An official who, in consideration of any act done in the course

of his employment and not in itself constituting a violation of his duties, accepts, demands, or obtains the promise of any gift. or other advantage is guilty of an offence punishable by a fine not exceeding three hundred marks or by imprisonment for a period not exceeding six months.

(b) Where the act in consideration of which a gift is made, demanded, or promised constitutes a violation of the official's duties, the maximum punishment is penal servitude for five years.

(c) The person making or offering the gift in case (a) is not guilty of any offence; in case (6) his maximum punishment is five years' imprisonment.

The expression "official" includes persons employed permanently or temporarily in the service of the Government, or of any local government authority. It does not include solicitors or advocates, but it includes public notaries (see s. 359).

As both the Empire and states and also municipal corporations in Germany carry on manifold and important trading enterprises-railways, banks, factories, gas, electrical and water works, etc., etc., these provisions cover a fairly large ground.

It is a matter of evidence in each case whether the gift was accepted or made with reference to any particular official act. Gifts made to an official in accordance with general custom (e.g., New Year's gifts, etc.), or in consideration of some act not forming part of the donee's official

duties, or in compliance with the usual forms of hospitality or from motives of personal friendship, are not subject to the above-mentioned provisions (see Liszt, Strafrecht, 6th edition, p. 519).

2. PROVISIONS RELATING TO AGENTS, TRUSTEES, ETC.

It is provided by s. 266 of the Criminal Code that persons belonging to any of the following classes, and doing any of the following things, are guilty of an offence punishable by imprisonment for a period not exceeding five years:

(a) Guardians, trustees, receivers, persons acting as trustees in any bankruptcy matter, executors and managers of charitable trusts, if by any act or omission they wilfully injure the interests of, or inflict any damage on, any person or thing committed to their care. (b) Persons having authority to collect debts or to realise any property, who in the course of such collection or realisation wilfully injure the interests of their principals.

(c) Surveyors, auctioneers, brokers, etc., and other persons carrying on their profession or trade under a government or municipal licence, who in the course of any transaction entrusted to their care wilfully injure the interests of the persons for whom they are acting.

In any of the three cases a fine not exceeding three thousand marks may be imposed, in addition to the imprisonment, if the offence was committed with the intention of obtaining a pecuniary benefit. In a similar way s. 249 of the German Mercantile Code (s. 312 of the New Mercantile Code, which will come into force on January 1st, 1900) provides that managers, directors, and liquidators of companies are guilty of an offence punishable with imprisonment for a period not exceeding five years and a fine not exceeding twenty thousand marks if by any act or omission they wilfully injure the interests of their company.

The expression "wilfully" (Absichtlich) in all these provisions does not necessarily imply that there must be an intention to injure. It is sufficient that the act or omission is done or caused with the knowledge that the person or company concerned will be injured thereby (see Liszt, ubi supra, p. 428, and the cases quoted in Rüdorff's edition of the Criminal Code, sub-s. 266).

It is therefore clear that in many cases the acceptance of secret commissions by trustees, brokers, directors, etc., would constitute a criminal offence under the above-mentioned sections.

With reference to both classes of provisions which I have mentioned, it may be useful to point out that German codes as a rule lay down general principles without enumerating individual instances. The fact that the sections which I have quoted show a marked departure from that rule tends to prove that it was found impossible or inexpedient to establish such a general principle with reference to the subject in question.

THE PROPOSED PENAL CODE FOR JAPAN.

[Contributed by W. F. CRAIES, ESQ.]

THE efforts of Japan to pass from the status of an Asiatic empire to that of a power recognised as on an equality with the Western family of nations have during the last few years been attended with marked success. In the Chino-Japanese war the progress of Japan in the modern arts and methods of war was made evident; and the international rules of European naval war were carefully studied and diligently adopted, if not developed, as will sufficiently appear to those who have read Mr. Takahashi's collection of the cases which arose during the war (Clarendon Press, 1899). At present Japanese statesmen are engaged in the work necessary to prepare for the abolition of the system of capitulations, hitherto found necessary in dealing with Eastern powers, which involve the concession of extra-territorial jurisdiction in causes criminal as well as civil over the subjects of the powers with which the capitulations are in force; and so far at least as Great Britain and the United States are concerned, Japanese jurisdiction over the subjects of these powers in Japan will very shortly be as complete as over Japanese subjects. This change of treatment renders it necessary in the interests of Europeans to ascertain the nature of the local law to which they will be subjected, and the kind of justice which they may expect to get in Japanese courts. A Code of Criminal Procedure which seems not to be readily accessible in England has already been passed and promulgated; and a Penal Code has been prepared of which Mr. de Becker has made an English translation (Yokohama, 1899, Eastern World Office), from which it is possible to judge the probable effect on British subjects of subjection to Japanese law. The code has not yet been passed by the Diet; but its previous publication is beneficial as affording opportunity for consideration and amendment, and, where necessary in British interests, for diplomatic representation. From internal evidence we should say that the draft, if not made in Germany, was modelled on the German Penal Code of 1870. Art. 3 of the Japanese draft runs: "The law is applicable to all offences committed within the borders of the Empire, irrespective of whether the perpetrator be a native or an alien"; and to offences on Japanese ships on the high seas and to piracy jure gentium. The part within inverted commas is almost a literal transcript of Art. 3 of the German Code; and Art. 4, which renders punishable in Japan foreigners

as well as natives who abroad commit felonious acts against Japan or its people, repeats the somewhat exceptional provision of the German Novella of 1876; while Art. 7 varies from English law (see Re. Hutchinson 1 Leach 135) and accords with German law in treating conviction for the offence abroad as no bar to trial in Japan, and as only ground for mitigation of punishment.

The scale of punishments resembles that of Germany; but the mode of capital punishment is by hanging, as in England and the United States, and not by decapitation, as in Germany; while the terms of penal servitude seem to have been calculated by reference to British rather than German precedent. S. 4 of the second chapter deals with prescription on German lines; while Chs. III. and VIII. deal with exemptions and legal excuses and extenuating circumstances, and Ch. IV. with attempts to commit crime in a manner distinctly modern, with no savour of Asiatic prejudice. And when reference is made to the substantive offences proposed for punishment under the Code, it will be found that their definition gives little or nothing to be objected to by Europeans, though whether it be the defect of the original or the translator we think that there will be ample opportunity for legal argument by Japanese lawyers as to the effect of some of the articles. The titles relating to perjury, forgery, theft, and destruction of public roads and waterways are much simpler and apparently quite as effectual as those of our law; while those as to desecration of temples and the bodies of the dead are an improvement on English precedent. With respect to homicide, we think the translator must be in error; for Art. 257 infers penal servitude for "killing" another without any qualification. But Art. 269 deals with involuntary homicide by negligence, and it must be assumed that it is not intended to punish involuntary homicide unless it arises from negligence or in the commission of another crime. Cases such as the Wark case are covered by Art. 272, which provides that where death of a woman is caused by abortion the offender may be dealt with as for wounding or grievous bodily harm, and not as for direct homicide.

One further point needs notice: that under the title "libel," injury to the reputation of the dead is indictable where it arises in consequence of a false accusation made before a judicial tribunal; and that slander in certain cases is indictable. And justification of defamatory statements within the scope of this part of the Code appears not to be permitted. Adultery, even by a wife, is made criminal, as in India and many Continental States.

This brief account of the nature of the draft code will on the whole be reassuring to Britons likely to fall under it; but beyond a doubt the legal advisers of the Foreign Office ought to carefully examine the whole code with the aid of the existing consular tribunals in Japan, and by reference to the Procedure Code, so as to guard so far as may be against possible difficulties and injustice when the code is passed and comes into operation.

NOTES.

Circular Despatch by the Colonial Office.-The Secretary of State for the Colonies has been good enough to issue the following circular despatch relative to the work of the Society of Comparative Legislation. This is not the only debt of gratitude which it owes to the Colonial Office, whose cordial approval and co-operation have greatly assisted in furthering the objects of the Society.

"Downing Street,

"Sir,

"21st March, 1899.

"Referring to my Circular despatches of the 20th July and 3rd October, 1895, I have the honour to inform you that the Society of Comparative Legislation, which has already done valuable work in collecting information on legal subjects, is extending its operations, and has secured the services of Mr. John Murray as the publisher of its Journal, which will now be issued in an improved form.

"2. I am anxious, as you are already aware, to do everything which may be possible to facilitate the work of the Society, and at their request I have arranged that they shall be furnished with a copy of every Colonial enactment as soon as it is received by this Department. In forwarding copies of such enactments I shall be glad if you will bear this additional requirement in mind.

"3. It has also been suggested to me that a half-yearly report by the Law Officers of the Colonies on the decisions by Colonial Courts on points of law of special interest would be of service to the Society as well as to this Department; and I would ask you to consider with your legal advisers whether this suggestion is practicable, and, if so, how it can best be carried out. "I have the honour to be, "Sir,

"Your most obedient, humble Servant,
"J. CHAMBERLAIN."

"The Officer Administering

the Government of

Need of Co-operation.-The editors of the Journal take the opportunity of the issue of a second number for 1899 to make another appeal to all persons interested in the work of the Society to co-operate. It is only by such co-operation, as has been already pointed out, and by the interchange of information and ideas which it secures, that the objects of