Facts
The present case occurred after the revised Swiss Code of Obligations came into force on July 1, 1992. The respondent [S.] was the Chairman of the Board of Directors of A. Holding AG and A. AG, the Chairman of the General Meetings, the vote counter, and the minute taker. He presented all the bearer shares of both companies to the notary public and had him constitute the General Meetings as universal meetings and have the resolutions passed entered in the Commercial Register.
In fact, [S.] was neither materially authorized to represent 68 bearer shares of A. Holding AG nor 8 bearer shares of A. AG. M. had revoked his power of attorney and demanded the return of the bearer documents. Nevertheless, [S.] held the General Meetings and deceived the notary public and the Commercial Register officials about the validity of the meetings and resolutions.
Considerations
The Federal Supreme Court decided that the minutes of the universal meetings of a public limited company have the character of an official document insofar as they form the basis for an entry in the Commercial Register. With his actions, [S.] fulfilled the objective elements of the offenses of indirect false certification under Art. 253 No. 1 of the Swiss Criminal Code and of obtaining a false certification under Art. 253 of the Swiss Criminal Code.
While the possession of bearer shares under Art. 689a(2) of the Swiss Code of Obligations creates a presumption that the holder is also the holder of the substantive membership rights, the company has a legal duty to refuse the exercise of membership rights to the presenter who is not…