Embezzlement Of Social Funds By A Snc Manager
LexInter | May 6, 2017 | 0 Comments

Embezzlement Of Social Funds By A Snc Manager

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

Dismissal of the appeal brought by MD against the judgment of the Bourges Court of Appeal, correctional chamber, of February 1, 2001, which, for breach of trust, sentenced him to a 10,000-franc fine suspended and ordered pronounced on civil interests.

THE COURTYARD,

Considering the briefs produced in demand and in defense;

On the first ground of appeal, based on the violation of articles 314-1 and following of the Penal Code, 2 and following, 485 and 593 of the Code of Criminal Procedure:

“in that the impugned nursing judgment declared MD guilty of all the counts of breach of trust with which he is accused and declared admissible the constitution of civil party of CL;

an agreement from the partners to whom the misappropriation caused harm; that it results from the information which gave rise to the complaint of CL and the hearing debates that MD used the franking machine of the company to send mail of a personal nature; that he also used for personal purposes the telephone of the pharmacy, the considerable number of past calls being proof that the expenses incurred as such were not in the interest of society; that it is also attested by an expert report from COGEP, an accounting firm mandated by CL, of gasoline and motorway costs unrelated to the real activity of the pharmacy, especially as the SNC has a company vehicle; that MD admitted elsewhere, in the context of the information, having made the SNC bear his restaurant bills for about eight months; that it is established that he made bear by the company various expenses of lawyer and bailiff which relate to proceedings opposing him to CL and which, consequently, had no social character, even though the dispute was related to the CNS LD; that MD was unable to provide any proof of personal expenses incurred as overheads; that the sums taken by the interested party on the funds of the company could not return, as it claims, within the framework of an authorization of overdraft in current account of 100 000 francs; the Article 24 of the SNC statutes establishes the principle of current accounts, but only with regard to current account advances to the company, that is to say operations in the interest and for the benefit of the latter; that these operations of deposit or withdrawal of the advances thus carried out are expressly envisaged as having to require the agreement of the other associate and thus, in this case, of CL; that said article does not in any way target the faculty of a current account debtor and nothing in the rules of procedure comes to restrict the scope; that to follow, moreover, the reasoning of MD, the undue deductions concern only part of the facts for which he is being prosecuted, whereas on the contrary it is necessary to apprehend them in their entirety and that

that especially this reasoning is erroneous since the personal expenses reproached to MD were not recorded by debit current account but directly in the posts of load as well as that results from the balance sheets presented by the interested himself; that definitively, the crime of breach of confidence appears constituted of the head of the whole of the above-described expenses unduly supported by the SNC; that the judgment referred will be reformed in that he declared MD guilty of the offense which is only with regard to the costs of lawyer and bailiff settled within the framework of the proceedings opposing him to CL; that for the same reason it will be necessary to increase the amount of the fine imposed on him to the sum of 10,000 francs,

“then, on the one hand, that by considering that the applicant used the company’s franking machine to send letters of a personal nature, that he used the pharmacy telephone for personal purposes, the considerable number of past appeals being proof that the expenses incurred as such were not in the interest of the company, the appeal court, which proceeds by way of affirmation, in fact in no way characterized that provided proof of the use of the franking machine and the telephone for personal purposes and violated the aforementioned texts;

“then, on the other hand, that by retaining that it is attested by the expert report of the COGEP of gasoline and motorway costs unrelated to the real activity of the pharmacy especially as the SNC has company vehicles, without specifying how these costs were unrelated to the actual activity of the pharmacy, the fact that the company has company vehicles does not make it possible to characterize that these costs were for personal use and the report of the COGEP, as noted by the court, giving no justification for the peremptory assertions contained therein, the court of appeal did not legally justify its decision;

“then, thirdly, by noting that the plaintiff admitted, in the context of the information, having made the SNC bear his restaurant bills for about eight months, the court of appeal did not characterize by the fact that this charge was borne by the company that the expenses had been made in a personal interest;

“then, finally, that the plaintiff was asserting the use allowing each partner to have a partner’s current account to which the expenses incurred during the financial year by the company were charged, the plaintiff arguing that before the order for reference, at the end of the financial year all the disputed sums had been charged to his current account; that by retaining that it is established that the plaintiff made the company bear various legal and legal costs bailiff concerning proceedings opposing him to CL and which had no social character even though the dispute was relating to the company LD, the court of appeal which does not inquire whether the use which the applicant relied on who had regularized his situation at the end of the financial yearwas not likely to demonstrate the absence of breach of trust, violated the aforementioned texts “;

Whereas, to find MD guilty of breach of trust, the Court of Appeal stated that the latter, co-manager of the general partnership Pharmacie LD, had it take charge of personal expenses unrelated to its purpose ; that the judges add that the amount of these expenses was not debited from his current account;

Whereas in the state of these statements, and since commits the offense of breach of trust the one who embezzles the funds of a general partnership of which he is the manager , the court of appeal justified its decision ;

From which it follows that the plea cannot be accepted;

On the second ground of appeal, based on the violation of articles 314-1 and following of the Penal Code, and following, 485 and 593 of the Code of Criminal Procedure:

“in that the impugned invalidity judgment declared MD guilty of all the counts of breach of trust with which he is accused and declared admissible the constitution of civil party;

“on the grounds that CL, on the other hand, was perfectly admissible to do so in a personal capacity, contrary to what MD today asserts; that its constitution tends in fact to compensate not for social damage, but for his personal damage in quality partner, said damage being constituted in this case by the deprivation of part of the social benefits due to the actions of MD; that the expert report produced by COGEP, at the request of CL, could be discussed in an adversarial manner before the first judge and therefore validly accepted by the latter as evidence in application of article 427 of the Code of Criminal Procedure; that it follows that the total amount of breach of trust committed guilty MD stands at the sum of 203,114.91 francs;that insofar as CL holds half of the shares social, it is thus the sum of 101 557,45 francs, which was diverted to his prejudice;

“then, on the one hand, that the partner is inadmissible to act in compensation for damage caused by the damage directly caused to the company; that by noting that constitutes the offense of breach of trust, it does so for the manager of a general partnership to fraudulently withdraw funds from the company’s treasury without being able to justify the use made of it or the agreement of the partners to whom the misappropriation has caused damage, that it is established that the plaintiff made the company bear various costs, the trial judges who decided that the company was rightly declared inadmissible in its constitution as a civil party, no longer being represented by CL but by Me Rodde , receiver, that CLis on the other hand admissible to do it in a personal capacity, its constitution tending to the compensation not of the social damage but of his personal damage as a partner, consisting of the deprivation of part of the social benefits due to the actions of MD, the court of appeal, which notes as well that the damage of the partner was indirect, being the consequence of that of the company, violated the texts referred to above;

“then, on the other hand, by retaining that the applicant fraudulently took funds from the company’s treasury without being able to justify the use which was made of them or an agreement of the partners to whom the misappropriation was caused damage, that the applicant used the company’s franking machine, that he likewise used the pharmacy telephone for personal purposes; that it results from an expert report mandated by CL the existence gasoline and highway costs unrelated to the actual activity of the pharmacy; that MD made the company bear his restaurant bills for eight months, that he made him bear legal fees and ‘bailiff concerning proceedings opposing him to CL,by deciding that the constitution of civil party of the company is inadmissible on the grounds that its representative, judicial administrator, has not become a civil party but that on the other hand CL is perfectly admissible to do so in a personal capacity, its constitution tending to compensation not for the social damage but for his personal damage as a partner, said damage being constituted by the deprivation of part of the social benefits as a result of MD’s actions, the Court of Appeal did not thereby Even, not characterized the personal injury of CL since it did not find that the existence of profits was demonstrated and that the general meeting of the partners had decided the distribution of social benefits for the year in dispute and, leaving,it violated the aforementioned texts;

“then, thirdly, that all the misappropriations noted by the trial judges as constituting a breach of trust were to the detriment of the company; that by deciding that CL was admissible in its constitution of party civil in a personal capacity since it seeks to compensate not for social damage but for his personal damage as a partner, said damage being constituted by the deprivation of part of the social benefits due to the actions of the plaintiff, without finding for the year contested the existence of a social profit distributable, the court of appeal has not legally justified its decision with regard to the aforementioned texts;

“then, finally, that the plaintiff argued that on April 30, 1999, the date of the balance sheet for the 1998/1999 financial year, the sums borne by the company during the financial year had been debited from its current account and therefore reintegrated into the company’s assets, the applicant having reintegrated the entire sum which, by hypothesis, had been irregularly used, inviting the Court of Appeal to note that the contested withdrawals no longer existed at the closing of the financial year and therefore before the order for referral to the court; that it appeared that CL had not suffered any prejudice in the context of the distribution of profits; that by ordering the plaintiff to pay various sums to the civil party without investigating whether the evidence iswas not reported that these sums had been paid to the company by imputation on the current account of the plaintiff and, therefore, that no own damage to CL was demonstrated, the court of appeal violated the texts referred to above “;

Whereas, in order to declare admissible the constitution of civil party of CL, co-manager of the company and to award him damages, the judgment under appeal states that his request tends to the compensation of his personal damage which is constituted by the deprivation of part of the social benefits due to the actions attributed to the defendant;

Whereas in the state of these statements, from which it can be deduced that the movements occurring in the current account of the defendant’s associate, subsequent to the facts, do not demonstrate the existence of a regularization, the court of appeal justified its decision, therefore, that the embezzlement committed by a partner of a partnership, cause to the other partners, who respond indefinitely and jointly and severally social debts, personal and direct damage;

From which it follows that the plea must be rejected;

And considering that the stop is regular in the form;

DISMISSES the appeal.

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