Corruption And Influence Peddling
LexInter | August 8, 2017 | 0 Comments

Corruption And Influence Peddling

Ruling on the appeal brought by: – ​​Cxxxx Serge,

against the judgment of the Paris Court of Appeal, 9th chamber, dated May 19, 1998, which, on referral after cassation, sentenced him to 1 year suspended imprisonment and a 200,000 francs fine, for abuse of corporate assets; Considering the brief produced;

On the first ground of appeal, based on the violation of articles 485, 518, 519, 520, 591 and 593 of the Code of Criminal Procedure;

‘in that the judgment under appeal decided that it did not belong to him to pronounce the nullity of the judgment and consequently confirmed the judgment of April 20, 1995;

‘on the grounds that’ it follows from the combination of Articles 485, 518, 519, 520 and 593 of the Code of Criminal Procedure that the Court seised, after referral, by the devolutive effect of the appeal, has no to pronounce the nullity of a judgment on the alleged grounds of insufficient motivation when it is up to him on the contrary to repair the grievance, supposing it to be characterized ‘;

‘whereas if the appeal can tend to the reform of the decision, it can also tend to its annulment; that in the presence of an irregularity affecting the decision of first instance and relating in particular to the motivation, the judges of appeal have the duty to cancel the judgment then to rule on the merits; that in deciding otherwise, the trial judges violated the aforementioned texts’;

Whereas, to refuse to annul the judgment referred to them, the judges of the second degree are determined by the reasons given by means;

Whereas Serge Cxxxx, the only appellant, could not object to this decision, since, on the one hand, the Court of Appeal considered that the judgment was sufficiently reasoned and that, on the other hand, it did not could, the first judges having ruled on the merits against the other defendants, defeat the principles which, arising from articles 509 and 515 of the Code of Criminal Procedure, govern the devolving effect of the appeal;

From which it follows that the plea is unfounded;

On the second ground of appeal, taken from the violation of article 437-3 ° of law n ° 66-537 of July 24, 1966, of articles 111-4 and 121-3 of the Penal Code, together articles 591 and 593 of the Code of Criminal Procedure, lack of legal basis;

‘in that the judgment under appeal declared Serge Cxxxx guilty of the head of misuse of corporate assets and sentenced him to one year of suspended imprisonment and a 200,000 francs fine;

‘on the grounds that Pierre Bxxxx issued two invoices, which were paid to him, payable to the company Kxxxx France; that these two invoices are not supported by any contractual document; that the only consideration for which it could be justified, the supplier himself asserting the fictitious nature of the services, lies in the booklet entitled ‘Studies of franchise arrangement Kxxxx’, without value or interest, comprising ten sheets including four for the titles and sub-titles and six for the logos Fxxxx, Pxxxx and the facade plans of a site; that in any case, it is not justified to study and implement a franchise system assuming at least the definition of a concept or a specific, original, original and substantial know-how, with experienced commercial techniques constantly developed and controlled, the operation of a brand having acquired a certain notoriety, the search for franchisees, the determination of the synallagmatic obligations of the franchisor and the franchisees; that it is not claimed that these studies were actually considered, Serge Cxxxx contenting himself to assert that Pierre Bxxxx had especially invoiced his entregent and relations which he prided himself in the sector of large-scale distribution held by hypermarkets; that he even specified that Pierre Bxxxx had been, there, totally failing and had never brought the slightest case; that the funds were paid to SA Kxxxx France to Pierre Bxxxx without any commercial consideration, in payment of fictitious services, to the detriment of the social interest and to the detriment of the company’s cash flow, of which Serge Cxxxx himself deplored at the time the difficulties linked to a smear campaign; that failing to be justified by the interest, however minimal it may be, of the company Kxxxx, the payments could only be made in the personal interest of Serge Cxxxx who wanted to spare himself the support and true or supposed relations of Pierre Bxxxx, regardless of his objectives and motives that he does not want to specify but which have no direct or indirect link with the immediate or non-immediate interest of the company Kxxxx France; that the material and intentional elements of the misuse of social property are therefore combined; time the difficulties associated with a smear campaign; that failing to be justified by the interest, however minimal it may be, of the company Kxxxx, the payments could only be made in the personal interest of Serge Cxxxx who wanted to spare himself the support and true or supposed relations of Pierre Bxxxx, regardless of his objectives and motives that he does not want to specify but which have no direct or indirect link with the immediate or non-immediate interest of the company Kxxxx France; that the material and intentional elements of the misuse of social property are therefore combined; time the difficulties associated with a smear campaign; that failing to be justified by the interest, however minimal it may be, of the company Kxxxx, the payments could only be made in the personal interest of Serge Cxxxx who wanted to spare himself the support and true or supposed relations of Pierre Bxxxx, regardless of his objectives and motives that he does not want to specify but which have no direct or indirect link with the immediate or non-immediate interest of the company Kxxxx France; that the material and intentional elements of the misuse of social property are therefore combined; personal interest of Serge Cxxxx who wanted to spare himself the real or supposed supports and relationships of Pierre Bxxxx, regardless of his objectives and motives that he does not want to specify but which have no direct or indirect link with the immediate interest or not of the company Kxxxx France; that the material and intentional elements of the misuse of social property are therefore combined; personal interest of Serge Cxxxx who wanted to spare himself the real or supposed supports and relationships of Pierre Bxxxx, regardless of his objectives and motives that he does not want to specify but which have no direct or indirect link with the immediate interest or not of the company Kxxxx France; that the material and intentional elements of the misuse of social property are therefore combined;

‘whereas, firstly, the offense of misuse of company assets supposes not only that the act is contrary to the social interest, but that it has been carried out in a personal interest; that these two conditions being distinct and independent from each other, the judges cannot deduce the search for personal interest from what it is established that the act was not in conformity with the interests of the society ; that by stating however ‘that failing to be justified by the interest (…) of the company Kxxxx, the payments could only be made in the personal interest of Serge Cxxxx (… ) ‘, the trial judges, who deduced the personal interest from the opposition to the social interest, violated the aforementioned texts;

‘and while, secondly, subject to the assumption that the manager has made a hidden levy, in which case it can be presumed that the funds were used in his personal interest, it is incumbent on the public prosecutor, in accordance with common law , to prove that the act complained of was carried out in the personal interest of the manager; that in this regard, it was not enough for the trial judges to note that Serge Cxxxx had made a point ‘to spare himself the supports and true or supposed relationships of Pierre Bxxxx’ without questioning the objectives he was pursuing and seeking whether the support and relations of Pierre Bxxxx were requested in the interest of the company or in the personal interest of Serge Cxxxx; that in this regard, the

Whereas, to condemn Serge Cxxxx of the head of abuse of social goods, the court of appeal pronounces by the reasons taken again by means;

Given, in this state, that it justified its decision, since in matters of abuse of corporate assets, the personal interest can be both moral and material and result, in particular, as in the present case, from the concern for maintaining good relations with a third party close to political spheres;

From which it follows that the means could not be admitted;

And considering that the stop is regular in the form;

DISMISSES the appeal.

On the report of the counselor ROGER, the observations of Me FOUSSARD, lawyer in the Court, and the conclusions of Mr. Advocate General Di GUARDIA; Mr. GOMEZ president.

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