Editor's note: Former chapter 9 of this title on Major Crimes (§§ 901-951) was repealed in its entirety by PL 11-72 § 1. This new chapter 9 was enacted by PL 11-72 § 84 and is part of the Revised Criminal Code Act.
§ 966. Realization of covered property.
§ 967. Application of proceeds of realization and other sums.
§ 968. Exercise of powers of receiver or fiduciary.
§ 969. Supremacy of this subchapter in bankruptcy or winding up.
§ 970. Winding up of corporation, company, or other commercial enterprise or entity holding covered property.
(b) all conditions of the order have been met; and
(c) the order is not discharged; the Supreme Court may, on an application by the Secretary, exercise the powers conferred upon the Supreme Court by this section with respect to covered property (as defined by section 903(1)(f)) of this chapter.
(2) The Supreme Court may appoint a receiver in respect of covered property.
(3) The Supreme Court may empower a receiver appointed under subsection (2) of this section to take possession of any covered property subject to such conditions or exceptions as may be specified by the Supreme Court.
(4) The Supreme Court may order any person having possession of covered property to give possession of it to any such receiver.
(5) The Supreme Court may empower any such receiver to realize (liquidate and convert into cash and/or obtain payment of the value of defendant's interest) any covered property in such manner as the Supreme Court may direct.
(6) The Supreme Court may order any person holding an interest in covered property to make such payment to the receiver in respect of any interest held by the defendant or, as the case may be, the recipient of a gift caught by this Act as the Supreme Court may direct, and the Supreme Court may, on the payment being made by order, transfer, grant or extinguish any interest in the property.
(7) The Supreme Court shall not, in respect of any property, exercise the powers conferred by subsections (3), (4), (5) or (6) of this section, unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the Supreme Court.
Source: PL 11-72 § 159.
Cross-reference: The statutory provisions on the President and the Executive are found in title 2 of this code. The statutory provisions on the Congress of the Federated States of Micronesia are found in title 3 of this code. The statutory provisions on the FSM Supreme Court and the Judiciary are found in title 4 of this code.
The website of the FSM National Government contains announcements, press releases, news, forms, and other information on the National Government at http://fsmgov.org.
The FSM Supreme Court website contains court decisions, rules, calendar, and other information of the court, the Constitution, the code of the Federated States of Micronesia, and other legal resource information at http://www.fsmsupremecourt.org/.
The official website of the Congress of the Federated States of Micronesia contains the public laws enacted by the Congress, sessions, committee hearings, rules, and other Congressional information at http://www.fsmcongress.fm/.
(1) Subject to subsection (2) of this section, the following property in the hands of a receiver appointed under this Act, being:
(a) the proceeds of the realization of any property under section 966 of this chapter; and
(b) any other sums, being property held by the defendant; shall, after such payments, if any, as the Supreme Court may direct have been made out of those sums, be payable to the Clerk of the Supreme Court and be applied on the defendant's behalf towards the satisfaction of the pecuniary penalty order in the manner provided by subsection (3) of this section.
(2) If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute those sums:
(a) among such of those innocent third persons who held covered property which has been recovered under this subchapter (either through seizure and liquidation or by payment of defendant's interest therein by the holder) who have come forward and made application to the Court for return of the property; and
(b) in such proportions, as the Supreme Court may direct, after giving a reasonable opportunity for those persons to make representations to the Supreme Court.
(3) Property received by the Clerk of the Supreme Court on account of an amount payable under a confiscation order shall be applied as follows:
(a) if received by the Clerk of the Supreme Court from a receiver under subsection (1) of this section, it shall first be applied in payment of the receiver's remuneration and expenses; and
(b) the balance shall be paid or, as the case may be, transferred, to the General Fund of the Federated States of Micronesia, until such time that a Federated States of Micronesia Fund For Drug Abuse Prevention And Control is established pursuant to law, at which time, any balance then accrued, shall be paid, or as the case may be, transferred, to said Fund.
Source: PL 11-72 § 160.
Cross-reference: The statutory provisions on the Executive and the President are found in title 2 (Executive) of this code. The statutory provisions on the Judiciary and the FSM Supreme Court are found in title 4 (Judicial) of this code.
(1) The following provisions of this section apply to the powers conferred on the Supreme Court by sections 958, 964, 965 and 966 of this chapter, or on a receiver or fiduciary appointed under subsection 958(1)(e) or subsection 966(2) of this chapter.
(2) The position of receiver or fiduciary shall be one of confidence and trust, and the powers of a receiver or fiduciary shall be exercised by him or her with the highest degree of competence, honesty, good faith and fair dealing.
(3) Subject to the following provisions of this section, the powers of a receiver or fiduciary shall be exercised first so as to satisfy any pecuniary penalty order, which order shall be satisfied first from the present value of covered property of the defendant.
(4) In the case of covered property held by a person to whom the defendant has directly or indirectly made a gift caught by this act, the receiver or fiduciary shall endeavor to realize the present value of the gift.
(5) The powers shall be exercised with a view to allowing any innocent person or the innocent recipient of any such gift to retain or recover the value of any property held by him or her.
(6) An order may be made or other action taken in respect of costs arising from the case.
(7) In exercising the powers granted under this section, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the pecuniary penalty order or any confiscation order issued in the case.
(1) Where a person who holds covered property is adjudged bankrupt in any proceeding wherever held, the Federated States of Micronesia shall stand as first lienholder to the extent of any amount owed by the bankrupt person in the Federated States of Micronesia as a pecuniary penalty or under a confiscation order; and
(a) property located in the Federated States of Micronesia which is subject to a restraining order made before the order adjudging the person bankrupt; and
(b) any proceeds of property confiscated under this act, or recovered by virtue of subsections 966(5) or (6) of this chapter, and held by a person appointed under subsection 958(1)(e) or 966(2) of this chapter; shall not be considered as property of the bankrupt person or the estate for the purposes of the applicable bankruptcy Act or any civil attachment proceedings.
(2) Subject to subsection (1) of this section, where a person has been adjudged bankrupt, the powers conferred on the Supreme Court by sections 958 and 966 of this chapter, or on a person appointed under subsection 958(1)(g) or 966(2) of this chapter, shall not be exercised in relation to property comprised as property of the bankrupt person for the purposes of the applicable bankruptcy Act.
(3) Where a receiver stands appointed under an applicable bankruptcy Act, and property of the debtor is subject to a restraining order under or for the purposes of the bankruptcy Act, the powers conferred on the receiver by virtue of the bankruptcy Act do not apply to tainted property or proceeds of crime which are subject to forfeiture or confiscation under this Act until such time as the period of time for bringing an action for forfeiture or confiscation under this Act is exhausted.
(4) Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by this Act:
(a) no order shall be made under the applicable bankruptcy act relating to such gift where:
(i) the bankrupt person has been charged with a serious offense and the proceedings have not been concluded, either by the acquittal of the defendant or final dismissal of the proceedings; or where
(ii) property of the person to whom the gift was made is subject to a restraining order or confiscation order under this Act; and
(b) any order made under the applicable bankruptcy Act, shall take into account any recovery under this act of property held by the person to whom the gift was made.
Source: PL 11-72 § 162.
Cross-reference: The statutory provisions on the Executive and the President are found in title 2 (Executive) of this code. The statutory provisions on the Judiciary and the FSM Supreme Court are found in title 4 (Judicial) of this code.
(1) Where covered property is held by a corporation, company, or other commercial enterprise or entity and an order for the winding up has been made, or a resolution has been passed by the corporation, company, or other commercial enterprise or entity for its voluntary winding up, the functions of the liquidator or receiver appointed for the winding up shall not be exercisable in relation to:
(a) property subject to a restraining order or confiscation order made before such winding up; or
(b) any proceeds of property recovered by virtue of subsections 966(5) or (6) of this chapter, and in the hands of a person appointed under subsection 958(1)(e) or 966(2) of this chapter; but there shall be payable out of such property any expenses (including the remuneration of the liquidator or receiver) properly incurred in the winding up of the corporation, company, or other commercial enterprise or entity.
(2) Where, in the case of a corporation, company, or other commercial enterprise or entity, an order for winding up has been made or a resolution for winding up has been passed, the powers conferred on the Supreme Court by section 958 or 966 of this chapter shall not be exercised in relation to any covered property held by the corporation, company, or other commercial enterprise or entity:
(a) which will unfairly inhibit the liquidator or receiver from exercising his or her proper functions for the purpose of distributing any property held by the company to the company's legitimate creditors; or
(b) which will prevent the payment out of any property the corporation, company, or other commercial enterprise or entity, of expenses (including the remuneration of the liquidator or receiver) properly incurred in the winding up.
(3) Subsection (2) of this section does not affect the enforcement of a restraining order or confiscation order made before the order or resolution for winding up.
(4) Nothing in other laws of the Federated States of Micronesia or its states relating to corporations, companies, or other commercial enterprises or entities shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the Supreme Court by section 958 or 966 of this chapter, and in case of conflict, this Act shall take precedence.
Source: PL 11-72 § 163.
Cross-reference: The statutory provisions on the Executive and the President are found in title 2 (Executive) of this code. The statutory provisions on the Judiciary and the FSM Supreme Court are found in title 4 (Judicial) of this code.