Criminal business law was born with the law of July 17, 1865 criminalizing the distribution of fictitious dividends in partnerships limited by shares. The Stavisky affair is at the origin of the promulgation of the decree-law of August 8, 1935 on the abuse of corporate assets. After the war, the ordinances of June 30, 1945 relating to price regulation and infringements of economic legislation marked the development of economic criminal law. Penalization is inherent in economic interventionism.
Criminal law has thus become the mode of market regulation by business law and public procurement law, a fundamental aspect of social law or administrative law. Penalization corresponds to a form of judicialization of regulation where any text contains its penal aspect, the breaches being constitutive of offenses (see Jean Marie Coulon,, New fields of penalization, excess and gaps, Pouvoirs 2008 p.128 ).
Commercial law, accounting law, company law, consumer law, competition law, the environment or the stock market are “penalized”. Criminal law is an extension of these rights, criminal sanctions ensure respect for private interests. (see Frédéric Desportes and Francis Le Guhenec, Droit Pénal Général, n. 42). The definition of offenses is made on the basis of economic considerations. Criminal sanctions are cumulative with administrative sanctions.
The criminalization of behavior contrary to standards entails the application of specific rules of general criminal law and procedural rules in criminal matters. The development of penalization is favored by the shortcomings of the administrative process and the civil process. The logics of compensation for the administrative judge, the mechanisms of administrative liability are an incentive to seek the criminal liability of public decision-makers and legal persons (Philippe Raimbault, Criminal responsibility of decision-makers and legal persons, Report XXXIV French Congress of criminology, 2008). The criminal judge appears, because of his investigative powers and his ability to organize a public debate,
The generalized penalization of many sectors of the law reflects the appearance of collective damages resulting from behavior harming private interests. It results in constant penal inflation while these collective damages are better compensated in common law systems by “class actions”. The refusal to adopt civil procedural means for the compensation of collective damage with the competence of the civil judge, whether by the prohibition of group actions, by the refusal, in civil proceedings, of a procedure allowing the victims seeking evidence, or ensuring their defense without having to take the risks of the procedure, results in the imposition of criminal proceedings on the victims. frepressive inequality of civil action as for example in matters of industrial accidents, where compensation is lump-sum.
If this penalization is often considered excessive and has been the subject of certain measures of ” decriminalization of business law », Immediately counterbalanced by new penal sanctions, it is at the heart of the French system of sanctions and redress for breaches of the incessant proliferation of standards. This penalization is presented as having moreover a dissuasive effect which in other legal systems are ensured for example by punitive damages for the benefit of the victims. The Anglo-Saxon countries do not make the reparation of victims dependent on criminal misconduct, which explains why victims have no role in the criminal trial, being reminded that victims have the power of civil investigation. French law makes reparation dependent on criminal misconduct. It is misleading to read that the victim is excluded from criminal proceedings in Anglo-Saxon countries,
BUSINESS AND COMMON LAW OFFENSES
Economic law and criminal sanctions
The legislative provisions are generally accompanied by sanctions and penalties. The legislator multiplies the penal sanctions, even though it is affirmed that it is necessary to decriminalize the business law.
This penalization affects in particular company law, labor law, competition law, town planning and construction law.
Criminal liability in business law affects natural persons , and in particular the entrepreneur, but also legal persons . French law indeed provides for both individual and collective criminal liability. This is a combination of responsibility.
Business, the criminal court and the Greek tragedy, Berlioz, Georges, Marchés et Techniques Financières-Haute Finance (MTF), n ° 63, 01/09/1994, pp 35-36
Inadmissibility of union action in matters of corporate offenses: Bis repetita, Cass., Crim., July 28, 1999, Syndicat Cgt Eap, Barbièri, Jean-François, Bulletin Joly Sociétés, 01/01/2000, pp 63- 65
Unions, the admissibility of union action in court in so-called financial crimes, Crost, Frédérique, Lamy Social Week, 06/28/1999, pp 6-9
Note under Court of Cassation, Criminal Chamber, June 30, 1998, Works council of the company LCL and others, Revue de Jurisprudence Sociale (RJS), 01/10/1998, pp 747-748
Collective civil action and specialty of legal persons, Canin, Pierre, Revue de science criminelle, 01/10/1995, pp 751-783
General Tax Code (CGI), articles 1741 and 1743; General Tax Code (CGI), Book of Tax Procedures (LPF), article 227; Ordinance number 67-833 of September 28, 1967, article 10-1;
Law number 96-597 of 2 July 1996 known as the modernization of financial activities or “MAF” Law, articles 89-X and 89-XII;
Regulation of the Commission des Opérations de Bourse (COB) number 90-08, relating to the use of inside information;
Hacking; Computer crime;
Law number 96-588 of July 1, 1996; Intellectual Property Code (IPC), article L 716-9 and following, articles L 615-1 and following, articles L 122-6 and following, articles L 122-4, articles L 511-1 and following;
Law number 78-17 of January 6, 1978 relating to data processing, files and freedoms known as the “Data Protection Act”; Law number 71-1130 of December 31, 1971; Order of December 3, 1987; Law of July 5, 1996;
Rural Code, article L 252-30