Abuse Of Social Goods Indices
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ABUSE OF CORPORATE PROPERTY PRESCRIPTION LEGAL

CRIM. – April 10, 2002. REJECT, N ° 01-80.090. – Paris CA, November 22, 2000. – M. Fontanille et a.

Public action. – Time limit. – Starting point. – Misuse of corporate assets.

Characterizes a concealment, such as to cause the limitation period to run from a date subsequent to that of the presentation of the accounts, the court of appeal which, with regard to abuse of corporate assets committed to the prejudice of a company mixed economy and resulting from payments of funds carried out in execution of regulated agreements entered into with various companies, states, on the one hand, that one of these agreements was not presented until 3 years later to the partners in the report special report of the auditor, that another was not the subject of any deliberation by the board of directors, and that, for those which, in themselves devoid of fraudulent character, had been referred to in the special reports of the statutory auditors, only the reconciliation andanalysis of the invoices issued under their cover, carried out subsequently in an audit report, made it possible to discover their fraudulent use, on the other hand, that the legal obligations of information of the local authority shareholder in the accounts and activities of the company.

The Court of Appeal likewise characterizes such a concealment which states, with regard to the abuse of corporate assets resulting from the payment of personal expenses by means of social funds, that their criminal character was concealed by the mention on restaurant notes, of the name of people who did not take part in the meals.

THE COURT OF CASSATION, CRIMINAL CHAMBER. Limited training.

June 27, 2001. Judgment n ° 4783.

Appeal No. 00-87.414.

Ruling on the appeals brought by:

– Cxxxx Richard,

– Bxxxx Michel,

against the judgment of the GRENOBLE Court of Appeal, correctional chamber, dated September 20, 2000, which sentenced them, the first, for abuse of corporate assets and concealment, to 20 months suspended imprisonment and 300,000 francs fine, the second, for breach of trust, abuse of corporate assets and concealment, to 15 months suspended imprisonment and 100,000 francs fine, and which pronounced on civil interests; Joining the appeals because of the relatedness;

Having regard to the briefs produced, in demand and in defense;

On the first ground of appeal proposed for Richard Cxxxx, alleging violation of Articles 6.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 513, 591 and 593 of the Code of Criminal Procedure;

“in that the Court of Appeal refused to hear a witness whose hearing was requested by Richard Cxxxx;

“while, under Article 6, paragraph 3d of the European Convention for the Protection of Human Rights and Fundamental Freedoms, appellate judges are required, when legally required to do so, to order the adversarial hearing of defense witnesses under the same conditions as prosecution witnesses; that the judges’ refusal to grant such a request must be justified; that, therefore, the court of appeal could not refuse, as this results from the hearing register, to proceed to the hearing of Jean-François M., defense witness that Richard Cxxxx had summoned at the hearing of June 21, 2000, without explaining the reason for this refusal ” ;

Having regard to article 6.3 of the European Convention on Human Rights and article 593 of the Code of Criminal Procedure;

Whereas by virtue of the first of these texts, any accused has the right to examine or have examined witnesses against him and to obtain the summons and examination of witnesses on his behalf under the same conditions as witnesses against him; that it follows that, except impossibility which it belongs to them to specify the causes, the judges of appeal are held, when they are legally required, to order the contradictory hearing of said witnesses;

Whereas it results from the procedural documents that Richard Cxxxx had Jean-François M. summoned before the Court of Appeal to be heard as a witness; that the court rejected the request for a hearing without giving reasons;

But expected that in this state, while it was required to explain the reasons for its refusal, the Court of Appeal ignored the aforementioned texts and the aforementioned principles;

From which it follows that the cassation is incurred;

And on the second ground of cassation proposed for Richard Cxxxx, taken from the violation of articles 53 and 247 of the law of July 24, 1966, 8, 513, 591 and 593 of the Code of penal procedure;

“in that the judgment under appeal dismissed the exception based on the limitation period for public action;

“on the grounds that,” in matters of misuse of corporate assets, the starting point for the prescription of the offense must be set on the day it appeared and could be observed under conditions allowing the exercise of public action , this because of the particular nature of this crime which is most often concealed; that in the present case, whether it concerns the taking charge of the […] flights between November 1989 and November 1993 by the SExxxx or the SA Axxxx, the taking charge of the payment of the wages of the The household employee of Richard Cxxxx, professional footballer Gilles C. and the commercial manager Dominique Mxxxx by SMxxxx or by SA Sixxxx, these transactions do indeed appear in the annual accounts of the companies considered under the headings where they must find their place; that, however, It should be noted that since the disputed payments are embedded in the mass, either miscellaneous costs or salary costs, nothing allowed shareholders who were not in possession of detailed accounts, to know the allocation of costs and disputed wages and to verify whether these expenses had been made in the sole interest of the company; that, consequently, neither the shareholders, nor even the auditor had been able to trigger the public action at the date of presentation of the annual accounts; that it is only in October 1994, after the deposit of the report of Claude Peyre which had been charged to carry out an audit legal and accountant of the SExxxx, could not be discovered these anomalies; that this report has been communicated to the Grenoble prosecutor’s office, which has, December 26, 1995, ordered a preliminary investigation still in progress on June 11, 1997, date of the opening of the judicial investigation following the complaint with the constitution of civil party of the SExxxx; that consequently, the public action, as regards the abuse of social goods as the concealment of these can not be prescribed “;

“whereas the prescription of the public action of the head of misuse of corporate assets runs, except concealment, from the presentation of the annual accounts by which the disputed expenses are unduly charged to the company; that the judgment retains that the transactions corresponding to the facts prosecuted do indeed appear, in the annual accounts of the companies concerned, in the headings where they must find their place; that in the state of these statements, which exclude any concealment of the crimes prosecuted, the court of ‘appeal could not cause the limitation period to run on a date subsequent to that of the presentation of the annual accounts in which the expenses alleged against the defendants appeared “;

On the first ground of cassation proposed for Michel Bxxxx, taken from the violation of articles 53, 247, 437-3rd, 457 of the law of July 24, 1966, 8 and 593 of the Code of criminal procedure, lack of reasons and lack of basis legal;

“in that the judgment under appeal rejected the exception of limitation period for public action raised by Michel Bxxxx and declared him guilty of the offenses of misuse of corporate assets and concealment, condemning him to 15 months’ sentences. suspended prison sentence and a fine of 100,000 francs;

from the date of presentation of the annual accounts of Compagnie de Chauffage and Sixxxx, as soon as the disputed transactions were recorded in them and could thus be brought to the attention of the shareholders who, therefore, had the possibility to set public action in motion; that in the present case, whether it concerns the taking charge of the […] flights between November 1989 and November 1993 by the SExxxx or the SA Axxxx, the taking charge of the payment of the wages of the The household employee of Richard Cxxxx, professional footballer Gilles C. and the commercial manager Dominique Mxxxx by SMxxxx or by SA Sixxxx, these transactions do indeed appear in the annual accounts of the companies considered under the headings where they must find their place; that, however, It should be noted that since these disputed payments are embedded in the mass of either miscellaneous costs or salary costs, nothing allowed shareholders who were not in possession of the detailed accounts to know the allocation of the disputed costs and salaries. and to verify whether these expenses had been made in the sole interest of the company; that, consequently, the shareholders nor even the auditor had not been able to trigger the public action on the date of presentation of the annual accounts; that it was only in October 1994, with the filing of the report by Claude Payre who had been responsible for carrying out a legal and accounting audit of the company Mixed Economy Compagnie de Chauffage that these anomalies could be discovered; that this report was communicated to the Grenoble prosecutor’s office, which, on December 26, 1995, ordered a preliminary investigation, still in progress on June 11, 1997, the date of the opening of the judicial investigation following the complaint with the constitution of civil party of the SMxxxx Compagnie de Chauffage; that consequently, public action, both as regards the abuse of social property and the concealment of these cannot be prescribed;

“whereas, when the expenses of a company accused of the accused appear in the balance sheets for the years concerned in the absence of concealment, the limitation period for public action begins to run from the presentation of the annual accounts; It follows from the findings of the judgment that the disputed transactions appeared in the annual accounts of the undertakings considered “in the headings where they must find their place” but that they were however “embedded in the mass either of miscellaneous costs or of salary costs” , so that “nothing allowed shareholders who did notwere not in possession of the detailed accounts to know the allocations of the disputed costs and salaries and to verify whether these expenditures had been made in the sole interest of the company “; that ruling on such grounds, without characterizing the existence of ‘a concealment by the person concerned of the disputed expenses, the court of appeal violated the aforementioned texts “;

The means being united;

Considering Articles 7, 8 and 593 of the Code of Criminal Procedure, together Articles L. 223-23 and L. 225-254 of the Commercial Code;

Whereas the prescription of the public action of the head of misuse of social goods runs, except concealment, from the presentation of the annual accounts by which the disputed expenses are unduly charged to the company;

Whereas any judgment or judgment must contain the specific reasons to justify the decision; that the insufficiency or the contradiction of the reasons is equivalent to their absence;

Whereas, to rule out the prescription of public action, the judgment states that if the undue charges do indeed appear in the annual accounts of the companies considered in the headings where they must find their place, they were drowned in the mass or costs miscellaneous or salary costs and that nothing allowed the shareholders, who were not in possession of the detailed accounts, to know the allocation of disputed costs and salaries and to verify whether these expenditures had been made in the sole interest of the company; he adds that, therefore, shareholders or even the auditor were not able to trigger public action on the date of presentation of annual accounts;

But whereas in pronouncing thus, without drawing the legal consequences of their own findings or characterizing the concealment of the disputed operations, the Court of Appeal disregarded the aforementioned texts and the aforementioned principles;

From which it follows that the cassation is again incurred;

For these reasons, and without there being any need to examine the other means of cassation proposed,

BREAKDOWN and CANCELED, in all its provisions, the judgment of the Grenoble Court of Appeal, dated September 20, 2000, and, for it to be tried again, in accordance with the law,

REFERS the case and the parties to the Aix-en-Provence Court of Appeal, to that designated by special deliberation taken in council chamber;

ORDERS the printing of this judgment, its transcription on the registers of the registry of the Grenoble Court of Appeal, its mention in the margin or following the annulled judgment;

On the report of the counselor MARTIN, the observations of Me BROUCHOT and Me THOUIN-PALAT, and Me BOUTHORS, lawyers in the Court, and the conclusions of the Advocate General DI GUARDIA; M. COTTE president.

Cass.crim . October 13, 1999.

AUTHOR (S)            OHL, Daniel

Reference            JCP G Semaine Juridique (general edition)  , n °            38  ,            20/09/2000  , pp. 1715-1718

Appeal No. 98-86.040. Stop N ° 6148.

Ruling on the appeal brought by: – ​​the company Cxxxx, civil party,

against the judgment of the GRENOBLE Court of Appeal, correctional chamber, dated May 6, 1998, which, in the proceedings against Jean-Michel Dxxxx, Emmanuel Oxxxx, Pino Gxxxx, Daniel Bxxxx and François Mxxxx, for abuse of trust, fraud, complicity and concealment of these offenses, noted the prescription of public action and declared its constitution of civil party inadmissible; Considering the briefs produced in demand and in defense;

On the sole ground of appeal, alleging violation of articles 6, 8, 81 ¥ 9, 82-1, 156, 173 ¥ 3 and 593 of the Code of Criminal Procedure, article 2 of the Civil Code, lack of reasons and lack of legal basis;

” in that the judgment under appeal overturned the judgment of the Grenoble tribunal de grande instance of March 28, 1997 in all its provisions, found the termination of the public action, and declared the company Cxxxx inadmissible in its constitution of part civil;

‘on the grounds that,’ as the Advocate General maintains, the last act of prosecution carried out by the examining magistrate is the examination of the first appearance of François Mxxxx on May 30, 1991; this act was not followed by any other before the order to be communicated of July 19, 1994; the order of the president of the Grenoble tribunal de grande instance dated 23 September 1993 which replaced, because of his transfer, the examining magistrate who had until then conducted the information, does not interrupt the limitation period, said prescription being a simple administrative measure; in view of the fact that a period of more than three years elapsed between the act of May 30, 1991 and the order to be communicated of July 19, 1994, it should be noted that acquisition of the prescription of public action; the constitution of civil party can only be declared inadmissible ‘;

‘whereas until the date of entry into force of the law of January 4, 1993, henceforth allowing the civil party to ask the judge to perform interruptive acts, i.e. on March 1, 1993, the company Cxxxx, civil party , had no legal means to oblige the magistrates successively in charge of information to perform an act interrupting the prescription of public action, so that this prescription was necessarily suspended for its benefit between May 30, 1991 (date of the last act of prosecution carried out by the examining magistrate) and March 1, 1993 (date of entry into force of the said law), due to the inaction of the magistrate-instructor; that, therefore, by ruling as it did, the Court of Appeal violated the articles referred to in means’;

Having regard to articles 6, 8 and 82-1 of the Code of Criminal Procedure;

Whereas, while articles 81, paragraph 9, 82-1, 156 and 173, paragraph 3, of the Code of Criminal Procedure, which allow the parties to request the investigating courts to carry out certain interrupting acts, are now an obstacle that a civil party takes advantage of the suspension of the prescription of the public action due to the inaction of the judge, these texts, of immediate application, cannot have any effect on the prescriptions of which the course is remained suspended until their entry into force;

Whereas, to declare the public action prescribed concerning the facts denounced by the civil party, the judgment under appeal states that there was no act interrupting the limitation period between May 30, 1991, date of the examination of first appearance of François Mxxxx, and the order of either press release of July 19, 1994, or for more than 3 years;

But given that by ruling in this way, while until 1 March 1993, the date of entry into force of article 82-1 of the code of criminal procedure resulting from the law of 4 January 1993, the civil party had no ” no legal means to oblige the examining magistrate to perform an act interrupting the limitation period of the public action and that this was suspended for his benefit between May 30, 1991 and March 1, 1993, then interrupted by the orders to be communicated of July 19, 1994 and regulation of February 19, 1996, the court of appeal ignored the meaning and the scope of the aforementioned texts and of the principle recalled above;

From where it follows that the cassation is incurred on this head;

FOR THESE REASONS,

BREAKDOWN and CANCELED, in all its provisions, the above-mentioned judgment of the Grenoble Court of Appeal, dated May 6, 1998, and for it to be tried again, in accordance with the law,

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

ORDERS the printing of this judgment, its transcription in the registers of the registry of the Grenoble Court of Appeal, its mention in the margin or following the annulled judgment.

On the report of the adviser PIBOULEAU, the observations of the professional civil society CELICE, BLANCPAIN and SOLTNER, the professional civil society URTIN-PETIT and ROUSSEAU-VAN TROEYEN, lawyers at the Court, and the conclusions of the Advocate General COMMARET; Mr. GOMEZ president.

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