Abuse Of Social Goods Prestations And Billings
LexInter | September 9, 2017 | 0 Comments

Abuse Of Social Goods Prestations And Billings

Ruling on the appeal brought by: – ​​Gxxxx, – LE Gxxxx,

 against the judgment of the Court of Appeal of RENNES, 3rd chamber, dated September 29, 1994, which sentenced Gxxxx to 1 year suspended imprisonment and a fine of 20,000 francs, for breach of the rules on invoicing and abuse of corporate assets, and Le Gxxxx to 2 months’ suspended imprisonment and a fine of 5,000 francs for concealment of abuse of corporate assets and bankruptcy by embezzlement of assets, and which pronounced on civil reparations;   Having regard to the extended brief, common to the two applicants, and the produced defense;

 On the first ground of appeal alleging violation of articles 460, 513 and 593 of the Code of Criminal Procedure, 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, together violation of the rights of the defense;

 ‘in that the judgment under appeal specifies that the proceedings took place as follows:’ the Court heard: ‘Ms. Algier, adviser, in her report on the case; the accused during his interrogation; the public prosecutor in his requisitions; counsel for the accused in his pleadings; Me Podeur, counsel to the Prost consorts and the Sopia company in his pleadings; Me Morlet, counsel for Me Berthelot, civil party, in his pleadings; the accused in his final explanations’;

 ‘whereas under article 513 of the Code of Criminal Procedure, in its wording resulting from the law of January 4, 1993, which entered into force in application of article 49-1 of the law of August 24, 1993, namely on September 2, 1993, the parties to the appeal have the floor in the order provided for in article 460 of the same Code; that it follows that the request of the civil party and the requisitions of the public prosecutor must be presented before the defense of the accused; in the present case, the mentions of the judgment establish that the two councils of the civil parties presented their requests after the pleading of the counsel of the accused; that the obligation thus imposed on the accused to present his defense before the intervention of the civil party, harmed the interests of the defense, so that the

 Whereas if the judgment mentions that Gxxxx, the only defendant appearing, presented his defense before the public prosecutor in the order provided for by the provisions of article 513 of the Code of Criminal Procedure in their wording prior to the law of 4 January 1993, he specifies that the defendant had the floor last;

 That in this state, and since the aforementioned article 513 was re-established in its initial drafting by the law of February 8, 1995, the alleged irregularity did not infringe the rights of this applicant;

That Le Gxxxx, who had knowledge of the summons to appear at the hearing of the court of appeal, to which she did not appear, without providing an excuse, is without standing to invoke this complaint;

 That the means can not therefore be accepted;

 On the second ground of appeal alleging violation of Articles 6-1 and 6-3 a.) And b.) Of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 593 of the Code of Criminal Procedure, together violation of the rights of the defense, lack of reasons, lack of legal basis;

 ‘in that the judgment under appeal rejected the exception of nullity of the proceedings presented by the defendants;

‘on the grounds that the opening of an investigation procedure is neither compulsory nor necessary when the elements gathered during the preliminary investigation are sufficient; in the present case, the investigation procedure carried out by the SRPJ of Rennes comprises numerous hearings, as well as various accounting documents; that the citations delivered to the defendants are precise and likely to enable them to prepare their defense usefully;

 ‘then, on the one hand, that under Article 6-1 of the European Convention on Human Rights, everyone has the right to a fair trial; that if the Public Prosecutor’s Office is free to choose between the opening of an investigation and the way of summons, the latter procedure must be excluded if it cannot ensure the guarantee of a fair trial; in the present case, the complexity of the case relating to alleged infringements of an economic nature and the legislation on commercial companies, as well as the fact that Le Gxxxx; suffering during the investigation, had not been heard during the investigation, clearly required the opening of an investigation; that it follows that the referral to the criminal court by summons, without instruction, following

 ‘then, on the other hand, that under Article 6-3 of the European Convention on Human Rights, any accused has the right to be informed in detail of the nature and cause of the accusation against him, and to have the necessary time and facilities for the preparation of his defense; in the present case, the citations of 7 January 1993 confined themselves to proposing, in hermetic terms, qualifications and to specify the texts considered applicable, without stating clearly and detailed the facts being pursued; that moreover, and taking into account the complexity of the case, the delay between the citations of January 7, 1993 and the hearing of May 13, 1993 was insufficient to prepare effectively the defense of the defendants; that it follows that

 Whereas the defendants raised the nullity of the proceedings, based on the fact that they were unable to benefit from a fair trial, nor to have the facilities necessary for the preparation of their defense, nor to know the details of the charges brought against them, in the absence of preparatory information;

 Whereas, to reject this exception, the judges state that the opening of information is only optional in correctional matters; that the investigations carried out during the preliminary investigation are complete; that the public prosecutor, who made deliver to the defendants citations setting out with precision the facts which are imputed to them, used a faculty which opens to him the law by resorting to this mode of referral of the jurisdiction; that they add that the period requested by the defendants to prepare their defense before the criminal court was granted to them from March 4 to May 13, 1993;

 Whereas in this state, and since the evidence gathered during the investigation was submitted to the adversarial debate, and that in this case, the direct summons procedure allowed the judgment of the case within a reasonable time, the appeal court justified its decision;

 From where it follows that the plea, inadmissible for lack of having been invoked before the judges of the second degree with regard to Le Gxxxx, and ill-founded in that it is invoked by Gxxxx, can not be accepted;

 On the third ground of appeal alleging violation of articles 437-3 ° of the law of July 24, 1966, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

 ‘in that the judgment under appeal declared Gxxxx guilty of abuse of corporate assets to the detriment of the public limited company Presse de Bretagne and sentenced him to a term of imprisonment, as well as a fine, in also ordering him to pay various sums to the civil parties;

 ‘on the grounds that Gxxxx was CEO of SA Presse de Bretagne from 1984 to 1989, then vice-president until 31 May 1990, and in fact headed the printing unit of Sirep in which he had interests; that in its capacity as supplier to Sirep, the Brittany press was paid within an average of 75 days while the Brittany Press paid 50% of the SIREP within 30 days and the balance 10 days more late; that the prospecting of customers for the Sirep was carried out by the commercial employees of the company Presse de Bretagne; that the assembly of the offset plates was invoiced by the service film-assembly of the Press of Brittany, the Sirep not regulating that the supply of the blank plates; that the assembly and maintenance of a Sirep press were produced by an employee of the Presse de Bretagne at a very favorable hourly rate; that a strapping machine has been made available to Sirep for 30 months free of charge; that a used forklift truck was sold to Sirep at a favorable price; that to obtain the printing market for the magazine Le Rennais, Gxxxx favored Sirep;

 ‘then, on the one hand, that the abuse of corporate assets is punishable only when the act of use is contrary to the corporate interest, that is to say of such a nature as to compromise the integrity of the company assets and the possibilities of future recourse to the loan, and notably exceed the capacities of the company; that by limiting itself, to qualify as abuse of corporate assets, the acts of administration of Gxxxx, manager of SA Presse de Bretagne, in favor of SARL Sirep, quality subcontractor of the limited company, without specifying in that these acts were contrary to the interests of the SA Presse de Bretagne, that is to say of such a nature as to compromise the company’s assets, the Court of Appeal did not legally justify its decision;

‘then, on the other hand, that the qualification of abuse of corporate assets supposes that the manager acted in bad faith, it being specified that the intentional element must be characterized by the trial judges; that with regard to the numerous facts retained with load, the court of appeal does not characterize absolutely bad faith of Gxxxx; that for its part, the court excludes the good faith of the social leader that with regard to the delay invoicing offset plates, delay for which the interested party had invoked error; that therefore, by failing to characterize the element intentional concerning almost all of the facts retained in charge, the court of appeal did not legally justified its decision;

‘then, finally, that with regard to the delay in invoicing the offset plates, for which the court had excluded the error, that is to say the good faith of Gxxxx, the latter argued before the court of ‘appeal (conclusions at the bottom page 7) that it was he himself who had alerted, on June 8, 1988, the auditor of the absence of invoicing due to a dysfunction of the accounting service, that by refraining from respond to this essential articulation, such as to establish the good faith of the accused, the Court of Appeal deprived its decision of reasons;

Whereas, in order to find Gxxxx guilty of abuse of corporate assets to the detriment of the Presse de Bretagne company that he headed, the judgment under appeal states, for its own and adopted reasons, that this company granted, without any compensation, advantages to Sirep in the payment of its invoices, and that no company in relation with it benefited from the same facilities; that the court of appeal noted that services were provided free or at low cost by the company Presse de Bretagne for the benefit of Sirep, which benefited from equipment transferred free of charge or at a price lower than its market value by SA Presse from Brittany; that they add that the activity of Gxxxx made the company Presse de Bretagne lose markets in favor of Sirep, of which he was the de facto leader and of which his concubine,

Whereas in this state, the Court of Appeal, which responded as it should to the conclusions before it, characterized in all its constituent elements, in particular intentional, the offense of abuse of corporate assets which it recognized the accused guilty;

That the means can therefore only be discarded;

On the fourth ground of appeal alleging violation of articles 31 of the decree of December 1, 1986, 121-3 of the Penal Code, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Gxxxx guilty of non-compliant invoicing and pronounced against it both criminal and civil convictions;

‘on the grounds that three invoices were put, canceled and then replaced by reduced invoices; that with regard to the late invoicing of the assembly of the offset plates, the error can not be admitted, being about benefits taking place over several months;

‘then, on the one hand, that there is no crime without intention to commit; that non-compliant invoicing punishable by a fine of 5,000 francs to 100,000 francs is an offense; that by limiting itself, as regards the reduced invoices, to stating that three invoices had been issued by the company Presse de Bretagne, then canceled and replaced by reduced invoices, without explaining the intentional element of the offense , the court of appeal did not legally justify its decision;

‘then, on the other hand, that with regard to the delay in invoicing offset plates, Gxxxx argued that it was he himself who had alerted, on June 8, the auditor of the absence of invoicing due to a malfunction of the accounting department; that excluding the reality of an error, solely on the grounds of its persistence, without responding to this articulation essential, such as to exclude bad faith of the accused, the Court of Appeal deprived its decision of reasons;

Whereas, to declare Gxxxx guilty of infringements of the rules on invoicing, the contested judgment, for its own and adopted reasons, states that the defendant had regular invoices replaced by others which were reduced and no longer reflected the reality the services they concerned, without mentioning any discount;

Whereas the judges also note that the interested party abstained from proceeding, as and when their execution, to the invoicing of various works, spread over several months, and rule out the explanations provided on this point;

Whereas in this state, the Court of Appeal, which responded as it should to the conclusions before it and characterized in all its elements, in particular intentional, the infringements of the rules on invoicing of which it declared the accused guilty, justified his decision without incurring the grievance of the plea, which must be rejected;

On the fifth ground of appeal alleging violation of articles 425-4 ° and 431 of the law of July 24, 1966, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal has decadré Gxxxx guilty of abuse of corporate assets, to the prejudice of SARL Sirep and pronounced against him both criminal and civil convictions;

‘on the grounds that the investigation made it possible to establish that the printing unit of Sirep was in fact created by Gxxxx who in fact directed it from its creation; that Le Gxxxx, concubine of Gxxxx, was engaged by the company Sirep in 1987, as agent of production and became manager of right in 1990; that her remuneration was fixed successively at 15,000 francs, then 25,000 francs to reach 30,000 francs, even though she was providing secretarial tasks, Gxxxx being de facto co-manager;

‘then, on the one hand, that the abuse of corporate assets supposes an act of use contrary to the corporate interest, committed by the accused; that by declaring Gxxxx; guilty of abuse of corporate assets on the grounds of the ‘manifestly excessive’ remuneration of Le Gxxxx, production agent, then, since 1990, manager of the company Sirep, without noting that this remuneration had been set by Gxxxx, the court of the appeal did not legally justify its decision;

‘then, on the other hand, that Gxxxx argued that during the period from 1987 to August 31, 1990, the salary of Le Gxxxx had been fixed by Mr. Rohou, manager of the company Sirep, and not by himself; that refraining from responding to this essential articulation, the Court of Appeal deprived its decision of reasons;

On the sixth ground of appeal alleging violation of articles 460, paragraph 1 of the abrogated Penal Code, 321-1 of the Penal Code 425-4 ° of the law of July 24, 1966, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Le Gxxxx guilty of concealment of misuse of corporate assets, and pronounced against him both criminal and civil convictions;

‘on the grounds that Le Gxxxx benefited from excessive remuneration in relation to the activity it carried out for the benefit of Sirep; that its quality manager of right and concubine of Gxxxx, it was particularly well enlightened on the running of the company;

‘then, on the one hand, that the offense of concealment is only constituted if the things detained come from an offense; that in this case, the cassation intervening on the fifth plea of ​​cassation of the judgment under appeal, in that it declared Gxxxx guilty of abuse of corporate assets to the detriment of the company Sirep, will result, consequently , that of the judgment in that he declared Le Gxxxx guilty of concealment of abuse of social property;

‘then, on the other hand, that the offense of concealment is only constituted if the accused had knowledge of the fraudulent origin of the thing concealed; that on this point, the statements of the court of appeal according to which Le Gxxxx was the concubine of Gxxxx and the manager of law of the company in which she in fact only exercised secretarial tasks, are insufficient and do not characterize the intentional element of the offense ‘;

On the seventh ground of appeal based on the violation of articles 196, 197-2 °, 198 of the law of 25 January 1985, 402 of the repealed Criminal Code, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

‘in that the judgment under appeal declared Le Gxxxx guilty of bankruptcy, by embezzlement of assets of the company Sirep and pronounced against him both criminal and civil convictions;

‘for the reasons adopted that the excessive remuneration of Le Gxxxx, manager of the company Sirep from 1990, but in reality only performing secretarial duties, had not been reduced from 1990, while the company put in receivership on February 12, 1992, knew very important losses;

‘then, on the one hand, that the offense of bankruptcy by misappropriation of assets presupposes the existence of a positive act of disposal carried out on an element of the debtor’s patrimony, it being specified that even abusive use of the assets of the society does not characterize bankruptcy; that the court of appeal, which finds no positive act of provision of an element of the social patrimony, did not legally justified its decision;

‘then, on the other hand, that the offense of bankruptcy by misappropriation of assets supposes the existence of an act of disposal carried out on an element of the social heritage, after the date of cessation of payments; that failing to specify the date of cessation of payments of the company Sirep, and to find that this company was, at the time of granting the disputed remunerations, in a state of cessation of payments, the court of appeal did not legally justify its decision;

The means being united;

Whereas the Court of Appeal, to find guilty, Gxxxx of abuse of the property of SARL Sirep, and Le Gxxxx of receiving funds from this offense, and bankruptcy by embezzlement of the assets of this company, states, for own and adopted reasons, that the first de facto leader of Sirep fixed the remuneration of the second, who was manager of right;

That the judges note that, under cover of the funds paid to his concubine, Gxxxx wanted to remunerate his own activity for the benefit of the Sirep, that the remuneration of Le Gxxxx received after the date of cessation of payments, in December 1991, and until ‘to the receivership pronounced on February 18, 1992 was manifestly excessive in view of the work that it carried out and the financial situation of the company;

That in the state of these statements characterizing acts of disposition contrary to the social interest, the contested judgment, which did not have to follow the defendants in the detail of their arguments, justified its decision without incurring the complaints alleged;

That consequently, the means could not be accepted;

And considering that the stop is regular in the form;

DISMISSES the appeal.

On the report of the referendum advisor of LAROSIERE de CHAMPFEU, the observations of the professional civil society WAQUET, FARGE and HAZAN, and of the professional civil society LE BRET and LAUGIER, lawyers in the Court, and the conclusions of Mr. l Advocate General GALAND;   Mr. LE GUNEHEC, President.

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