Abs And Personal Participation
LexInter | June 18, 2012 | 0 Comments

Abs And Personal Participation

Cass. Crim . March 20, 1997.

Appeal No. 96-81.361. Stop N ° 1562.

NOTE    Boccara, David ,  Recueil Dalloz Sirey  , n °        2  ,             14/01/1999  , pp.             28-31

Ruling on the appeals brought by: – ​​THE ATTORNEY GENERAL AT THE DOUAI COURT OF APPEAL, – Cxxxx Bernard, – Bxxxx Jean-Luc,

against the judgment of the said court of appeal, 4th chamber, dated January 17, 1996, which declared Cxxxx, after partial release, guilty of abuse of corporate assets and abuse of powers, Bxxxx guilty of complicity in these misdemeanors, adjourned until October 16, 1996, with probation of the defendants, the pronouncement of sentences and ruled on civil interests; Joining the appeals because of the relatedness;

I – On the appeal of the Attorney General;

Whereas, the declaration of appeal having been made only on Wednesday January 24, 1996, after the expiry of the period of five clear days provided for by article 568 of the Code of Criminal Procedure, the appeal of the Attorney General is not admissible;

II – On the appeals of the other applicants;

Considering the briefs produced in demand and in defense;

On the facts and the procedure;

Whereas it results from the contested judgment and from the judgment that it partially confirms that the Société d’aménagement etquipement du Nord (SAEN), a mixed economy company of which Bernard Cxxxx was the chairman and of which Jean Coxxxx and Jean-Luc Bxxxx respectively assumed the functions of general manager and deputy manager, concluded regularly on October 6, 1989 with SA Golf de Mormal, having as chairman Jean Coxxxx and as administrator Jean-Luc Bxxxx, an agreement by which, for a lump sum remuneration, the latter entrusted him with the conduct of the realization of a golf course;

That, the SA Golf de Mormal having experienced financial difficulties, Jean Coxxxx made him advance, in May 1991 and August 1991, funds by the SAEN, and made the latter pay several invoices for which it was indebted;

That he drew up in March and April 1992 amendments dated March, April, August and December 1991, signed by him on behalf of SAEN and by Jean-Luc Bxxxx on behalf of SA Golf de Mormal, according to which the first ensured the pre-financing of the work undertaken by the second and paid certain invoices directly;

That Bernard Cxxxx and Jean Coxxxx were prosecuted for abuse of corporate assets and abuse of powers to the prejudice of the SAEN and Jean-Luc Bxxxx for complicity in these offenses; that Jean Coxxxx was definitively declared guilty of the alleged offenses;

In this state:

On the first ground of appeal proposed by Me Bouthors in favor of Jean-Luc Bxxxx alleging the violation of articles 101, 437-3 ° and 4 ° of the law of July 24, 1966, 121-1 and 121-7 of the Penal Code new, 591 to 593 of the Code of Criminal Procedure;

‘in that the judgment under appeal declared Jean-Luc Bxxxx guilty of complicity in the abuse of corporate assets and powers to the detriment of SAEN.

‘on the grounds that, as soon as the alert procedure was triggered by the auditor of SA Golf de Mormal in December 1990, Jean Coxxxx and Jean-Luc Bxxxx became aware of the latter’s desperate situation and acted dishonest ; that Jean Coxxxx, at the end of December 1990, asked Crédit Foncier, a shareholder of SAEN, to draw on the latter’s account 1,063,189.70 francs corresponding to the work carried out for the benefit of SA Golf de Mormal by the company Nord Green; that, on January 10, 1991, Jean-Luc Bxxxx signed a letter of order requiring the company Leclercq to present its invoice of 189,162.72 Francs, however relating to work carried out on behalf of SA Golf de Mormal, directly to SAEN; that from this period, they made every effort to engage SAEN, without the members of the board of directors being informed; that much more, they will do everything to be able to hide the situation as long as possible; that the fictitious endorsements, bearing dates of the year 1991, were carried out only in 1992; that in August 1991, they went so far as to have the SAEN buy shares in the Golf de Mormal SA (290,000 francs) in order to give rise to the commercial success of the latter, guaranteeing the financing of the share capital; that at no time have investors of sufficient size made a firm commitment to finance the SA Golf de Mormal project; whereas the works were launched at the end of 1989 without guarantee of financing; (…) that Jean Coxxxx, CEO of SA Golf de Mormal, knew the catastrophic state of the situation and deceived the auditor on this point; that Jean-Luc Bxxxx knowingly prepared and facilitated the acts committed by Jean Coxxxx and this from January 10, 1991, whereas, contrary to his assertions, no pre-financing on the part of SAEN resulted from the sole agreement of October 6, 1989 existing between SAEN and SA Golf de Mormal; that he was project manager of the golf works and thus knew the situations of non-payment of the intervening companies; that it cannot also usefully invoke the practice of provisional settlements of invoices by sub-accounts of surplus cash for other operations, the only movements of funds provided between the two contracting companies being able to exist only for the benefit of SAEN, who had been given the task of leading the realization of the whole; that by subsequently signing the amendments, by agreeing to affix his signature to the back of an account opening card at the Banque Générale de Commerce, and by sending a regularization fax on August 5, 1991 for a transfer to the account from SA Golf de Mormal, Jean-Luc Bxxxx continued, always with full knowledge of the facts, to facilitate the operations carried out by Jean Coxxxx; (…) that it appears, ultimately, that it is essentially for reasons of prestige or notoriety, personal for Jean Coxxxx and Jean-Luc Bxxxx political also for Bernard Cxxxx that they contributed to what more of 10 million francs were lost by the SAEN, for an operation in which it obtained no advantage, except that,

‘1 °) whereas, on the one hand, in the absence of prior concert, the assistance provided after the commission of the main offense cannot be penalized for complicity; that the signature of the endorsements corresponding to operations already carried out could not, under these conditions, be reproached to the plaintiff as accomplice, since no pact prior was characterized by judgment;

‘2 °) whereas, on the other hand, the Court did not explain itself otherwise, as it was required, on the exempting nature, for the applicant, of the appearance created by the principal author with a view to conceal the irregularity of his actions’;

Whereas, to declare Jean-Luc Bxxxx guilty of complicity in the abuse of corporate assets and abuse of powers, the judgment under appeal holds that after having taken cognizance of the desperate situation of SA Golf de Mormal, having led to December 1990 the auditor to trigger the alert procedure, he knowingly prepared and facilitated the acts committed by Jean Coxxxx in particular on January 10, 1991 by requiring a company carrying out work for the golf course to present its invoice directly to the SAEN , on August 5, 1991 by giving a bank instructions for a transfer to be made to the benefit of the SA, and subsequently by signing the amendments;

Whereas in the state of these statements, which characterize acts of complicity prior to or concomitant with the main action, the Court of Appeal justified its decision without incurring the alleged grievances;

From which it follows that the plea must be rejected;

On the second plea of ​​cassation proposed by Me Bouthors in favor of Jean-Luc Bxxxx taken from the violation of articles 53, paragraph 3, and 54 of the law n ° 85-99 of January 25, 1985, 101, 437-3 ° and 4 ° of the law of July 24, 1966, 121-1 and 121-7 of the new penal code, 2 and 10, 591 to 593 of the code of penal procedure;

‘in that the judgment under appeal confirmed the civil provisions of the judgment undertaken having jointly ordered the plaintiff to pay the SAEN 9,338,739 francs in damages;

‘while by not investigating, as required, whether the SAEN had retained its capacity to seek damages from the defendants, in the state of the final rejection of its debt within the framework of the judicial liquidation of the SA Golf de Mormal, the Court tainted its judgment with a lack of grounds on the right to compensation of the civil party ‘;

Whereas, to condemn Jean-Luc Bxxxx, jointly and severally with Jean Coxxxx to civil damages for the benefit of the SAEN, the contested judgment, by reasons adopted by the first judges, states that the constitution of civil party of the SAEN is not based on a debt of SA Golf de Mormal, but on the offenses committed by these two defendants;

Whereas in this state, the Court of Appeal, which did not have to respond better than it did to the conclusions of the applicant and sovereignly assessed the amount of the damage, justified its decision;

That, therefore, the means is unfounded;

On the first ground of appeal proposed by the professional civil society Waquet, Farge and Hazan in favor of Bernard Cxxxx alleging the violation of articles 437-3 ° and 4 ° of the law of July 24, 1966 and 593 of the Code of Criminal Procedure, lack and contradiction of reasons and lack of legal basis;

‘in that the contested nursing judgment declared Bernard Cxxxx guilty of abuse of corporate assets and abuse of powers to the prejudice of SAEN;

‘on the grounds that it is essentially for reasons of prestige or personal notoriety for Jean Coxxxx and Jean-Luc Bxxxx, also political for Bernard Cxxxx that they have contributed to the operation;

1 °) then, on the one hand, that prestige and political notoriety do not characterize personal interest, within the meaning of article 437-3 ° and 4 ° of the law of July 24, 1966; that, failing to characterize this constituent element of the offenses of abuse of social property and abuse of powers, the Court of Appeal violated the aforementioned texts;

2 °) then, on the other hand, that the court of appeal, which found that more than 10 million francs were lost by the SAEN in an operation which had no tourist fallout and of which it has drawn no advantage, could not affirm the existence of a personal interest for Bernard Cxxxx, without tainting its decision of a contradiction of reasons;

‘3 °) then, finally, that it follows from the findings of the first judges that Bernard Cxxxx had no interest in the SA Le Golf Mormal because he’ was neither a fan of golf, nor administrator or partner of (this) society ‘(p. 8, Ÿ 6); that, therefore, in the absence of allocation of the incriminated levies to an object foreign to the interest of the company concerned – either personal interest, or the interest of a third company where Bernard Cxxxx would have a share – no abuse of property social or power could not be reproached to the accused ‘;

Whereas, contrary to the allegations of the means, the search for prestige or notoriety, be it political, is likely to constitute personal ends, within the meaning of article 437, 3 °, of the law of July 24, 1966;

That the means, therefore, is not founded;

But on the second plea of ​​cassation proposed by the professional civil society Waquet, Farge and Hazan in favor of Bernard Cxxxx taken from the violation of articles 101, 437-3 ° and 4 ° of the law of July 24, 1966, 121-1 of New Penal Code and 593 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis;

‘in that the contested nursing judgment declared Bernard Cxxxx guilty of abuse of corporate assets and abuse of powers to the prejudice of the SAEN public limited company;

‘on the grounds that the declarations of Jean Coxxxx, implicating Bernard Cxxxx, in that he has always known and covered his actions which he knew to be irregular, while refusing to be informed in detail, are supported by the correspondence exchanged with the regional director of the Caisse des Dépôts et Consignations (see call number D 43); that, in his letter of January 15, 1991, the latter mentioned his “ greatest concern ”, in particular on the financial level, questioning the will and the capacity of Jean Coxxxx taken in his capacity as director of the SAEN, to implement all the necessary means to recover the large sums owed to it by SA Golf de Mormal, and the related SCI; that the response of January 31, 1991 from Bernard Cxxxx specifies that

‘1 °) then, on the one hand, that no one is criminally responsible except for his own act; in the present case, the judgment under appeal, which did not determine how Bernard Cxxxx had personally participated in the offenses prosecuted, and which did not identify against him any positive act characterizing the material element of the offense against him, deprived his conviction of any grounds;

‘2) then, on the other hand, that the two letters exchanged between the regional director of the Caisse des Dépôts et Consignations and, Bernard Cxxxx on January 15 and 31, 1991, on which the accusation is based, clearly demonstrate that Bernard Cxxxx was questioned about an official and known operation, namely the study and operation management agreement concluded on October 6, 1989 between SA du Golf de Mormal and SAEN, in accordance with the latter’s corporate purpose, and that the response of Bernard Cxxxx focused exclusively on this same official and known operation, exclusive of any hidden financing of the works by the SAEN -financing developed subsequently and only by Jean Coxxxx, in March 1991-; that by affirming nevertheless that the declarations of Jean Coxxxx implicating Bernard Cxxxx,

3 °) then, third part, that it follows from the reasons for the judgment that ‘this exchange of correspondence is prior to practically two months from the date of the preparation of rider n ° 1; that consequently, it is not established that Bernard Cxxxx was personally informed of all the financial arrangements carried out by the director general of the SAEN with the complicity of Jean-Luc Bxxxx deputy director, at a date subsequent to this exchange of matches’ (p. 9 Ÿ 1); that, therefore, by failing to explain the point of knowing how the correspondence between the regional director of the Caisse des Dépôts et Consignations and Bernard Cxxxx prior, by two months, to the criminal acts attributable to Bernard Coxxxx and Jean- Luc Bxxxx,

4 °) then, finally, that, if the fraudulent intention may result in particular from the negligence or lack of supervision of the chairman of the board of directors who did not use the powers he held from the social pact to to oppose the companies of a de facto manager who is the real master of the business, it is on the condition that he knows the criminal acts that he could prevent; that such is not the case when, as in this case, these acts were concealed and it does not result from the documents in the file that Bernard Cxxxx had knowledge of it at any time whatsoever; that by declaring nevertheless Bernard Cxxxx guilty of the offenses of abuse of confidence and powers, the court of appeal did not give a legal basis to its decision ‘;

Having regard to the said articles;

Whereas any judgment or judgment of conviction must characterize each of the constituent elements of the offenses held against the accused;

Whereas, in order to declare Bernard Cxxxx guilty of abuse of corporate assets and abuse of powers to the detriment of SAEN, the contested judgment merely states that he ‘always knew and covered the actions of Jean Coxxxx that’ he knew irregular, while refusing to be informed in detail ‘;

But expected that in the state of these only reasons, which do not characterize the personal participation of the applicant in the facts pursued, the Court of Appeal did not give legal basis to its decision;

That thus the cassation is incurred;

FOR THESE REASONS, and without it being necessary to examine the third plea proposed in favor of Bernard Cxxxx:

I – On the appeal of the Attorney General:

Declare it INADMISSIBLE;

II – On the appeal of Jean-Luc Bxxxx:

The REJECTS;

III – On the appeal of Bernard Cxxxx:

BROKEN AND CANCELED, in all its provisions concerning this applicant, the above-mentioned judgment of the Douai Court of Appeal, dated January 17, 1996, and, so that he may be tried again, in accordance with the law, in the limits of the cassation thus pronounced,

REFERS the case and the parties to the Paris Court of Appeal, to that designated by special deliberation taken in chamber of the council.

On the report of the counselor ROMAN, the observations of the professional civil society WAQUET, FARGE and HAZAN and of Me BOUTHORS, lawyers in the Court, and the conclusions of the lawyer general DINTILHAC; Mr. LE GUNEHEC, President.

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