MISUSE OF SOCIAL GOODS
LexInter | September 13, 2019 | 0 Comments

MISUSE OF SOCIAL GOODS

THE COURT OF CASSATION, CRIMINAL CHAMBER. Limited training.

March 21, 2001. Judgment n ° 2220.

Appeal No. 00-85.135.

Ruling on the appeals brought by: – ​​Mxxxx Olin,

– Mxxxx Iain,

against the judgment of the court of appeal of FORT-DE-FRANCE, correctional chamber, dated June 29, 2000, which condemned them the first, for abuse of corporate assets, and the second, for concealment of this offense, each to 6 months of suspended imprisonment and a 50,000 franc fine; Joining the appeals because of the relatedness;

Having regard to the brief produced jointly by the applicants;

On the first ground of appeal, alleging violation of articles 437, 460, 463, 464 of the law of July 24, 1966, 459, 512 and 593 of the Code of Criminal Procedure, lack of response to conclusions, lack of legal basis;

“in that the judgment under appeal declared Iain Mxxxx guilty of having made in bad faith, while he was chairman and managing director of the company Sxxxx, of the goods or the credit of this company a use contrary to the interest of this either for personal purposes or to promote another company or business in which he was directly interested;

“for the proper and adopted reasons that the advance in the shareholder’s current account granted to Olin Mxxxx had the consequence of placing a significant burden on the company’s cash flow; that by not ensuring a minimum of security, in particular on the land which Olin Mxxxx claimed to own, Iain Mxxxx endangered the repayment of this debt to the point that it was finally written off outright and that the claim of the company Sxxxx on the personal business of Olin Mxxxx was not produced; that Iain Mxxxx could not be unaware, as an informed businessman, that the use made of the sum advanced to his brother was contrary to the interests of Sxxxx; and that, it is with full knowledge of the facts and therefore in bad faith thatIain Mxxxx acted in his personal interest in order to safeguard his reputation, that of his family and the credibility of the Mxxxx group;

Olin Mxxxx, sole debtor; that the Court of Appeal could not therefore find the existence of a use of the goods of the society Sxxxx contrary to its interests only on the condition of raising and characterizing the elements of fact likely to demonstrate it; that by not doing so, the court of appeal did not respond to this peremptory means of the conclusions of the applicants and did not give a legal basis to its decision “;

On the second ground of appeal, alleging violation of articles 321-1, 321-3, 321-9 and 321-10 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 Olin Mxxxx guilty of the offense of concealment of misuse of corporate assets;

“for the proper and adopted reasons that Olin Mxxxx, brother of Iain, shareholder of the company Sxxxx, could not ignore the precarious financial situation of the company; that he received the funds knowingly; that he did not signed the IOU only late and provided no security;

“then, that the concealment supposes a moral element characterized by the knowledge in its author of the fraudulent origin of what it holds; that the court of appeal did not characterize this moral element by limiting itself to affirming that ‘ Olin Mxxxx had necessarily known the fraudulent origin of the funds received by the authorization of an overdraft in a partner’s current account, without sufficiently explaining the circumstances from which this alleged bad faith on the part of the accused was deduced; that thus the court of appeal did not give a legal basis for its decision “;

The means being united;

Whereas the statements of the judgment under appeal and of the judgment that it confirms on the conviction, partially taken up in the means, put the Court of Cassation in a position to ensure that the court of appeal has, without insufficiency or contradiction , responded to the peremptory heads of the conclusions before it and characterized in all their elements, both material and intentional, the offenses of which it declared the defendants guilty;

From where it follows that the means, which are limited to questioning the sovereign appreciation, by the judges of the merits, of the facts and circumstances of the case, as well as evidence contradictorily debated, can not be admitted;

And whereas the contested judgment is regular in form;

DISMISSES the appeals;

On the report of the LANCE referendum adviser, the observations of the professional civil society WAQUET, FARGE and HAZAN, lawyer in the Court, and the conclusions of the general advocate COMMARET; M. COTTE president.


THE COURT OF CASSATION, CRIMINAL CHAMBER. Limited training.

March 7, 2001. Judgment n ° 1739.

Appeal No. 00-83.169.

 

Ruling on the appeals brought by: – ​​Exxxx Jean-Luc,

– Pxxxx Claudine wife Exxxx,

– Hxxxx Franck,

against the judgment of the POITIERS Court of Appeal, correctional chamber, dated March 2, 2000, which condemned them, the first two for concealment of abuse of corporate assets, the last for abuse of corporate assets, each , to 10,000 francs fine suspended and ruled on civil interests; Joining the appeals because of the relatedness;

I – On the appeal of Franck Hxxxx;

Whereas no means are produced;

II – On the appeal of the Exxxx spouses;

Having regard to the brief produced, common to both applicants;

On the first ground of appeal, alleging violation of articles 437, 3 °, of the law of July 24, 1996, 321-1 of the Penal Code, 388 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis ;

“in that the judgment under appeal declared Jean-Luc and Claudine Exxxx guilty of the offense of concealment of abuse of corporate assets committed by Franck Hxxxx;

“on the grounds that the Spouses Exxxx knew that the services invoiced by them had been carried out for the exclusive benefit of the company Pxxxx which they were managers;

“and for the reasons adopted that it is thus established, notwithstanding the fact that the invoice would correspond to services carried out, that by issuing this invoice in the name of the company Ixxxx and by collecting the funds coming from this company, the Exxxx spouses knew that the services invoiced by them, were it for the exclusive profit of the company which they are managers, beneficiary of the precarious lease on the business of hotel restaurant exploited previously by the company Ixxxx;

“then, on the one hand, that the courts can legally rule only on the facts identified by the ordinance or the citation which referred them, this principle receiving exception only in the case where the defendant renounces to take advantage of it and accepts the debate on facts not denounced in the title of the prosecution; in this case, Jean-Luc and Claudine Exxxx were cited before the criminal court for having “concealed, knowingly, the sum of 106,740 francs, by issuing a false invoice for this amount to the limited company Ixxxx, managed by Franck Hxxxx “; that the trial judges, who found that the invoice corresponded to services performed and therefore real, could not enter the process of conviction against the defendants of the charge of concealment, without noting theagreement of these to be judged on facts not included in the prevention;

“then, on the other hand, by retaining the defendants in the links of prevention for having” cashed “the funds coming from the company Ixxxx, whereas the prevention aimed only at the establishment of the disputed invoice, without noting the agreement of the defendants to be judged on these new facts, the Court of Appeal, which adopted the reasons for the judgment, disregarded the aforementioned texts and principles “;

On the second ground of appeal, alleging violation of articles 437, 3 ° of the law of July 24, 1996, 321-1 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 Jean-Luc and Claudine Exxxx guilty of the offense of concealment of abuse of corporate assets committed by Franck Hxxxx;

in his hearing of 27 August 1997 that he had paid this invoice to guarantee his employment and that of his wife; that it is therefore common ground that Franck Hxxxx, in his capacity as CEO of Ixxxx, while the commercial lease from which it benefited had been taken over by SARL Pxxxx, made use of Ixxxx goods contrary to the interest of that company;

exploitation; that in fact, as the defendants argued in their pleadings, the negotiations had enabled the eviction procedure to be stopped and the sale of the movable property of the company Ixxxx to the new operating company of the hotel- restaurant at a price fixed and invoiced by the first; that therefore, by declaring Franck Hxxxx guilty of abuse of corporate assets without investigating whether, given the context, the disputed negotiations had not on the contrary made it possible to protect both the corporate heritage and the credit and reputation of the Ixxxx company , the court of appeal did not legally justify its decision with regard to the aforementioned texts “; termination of the eviction procedure and the sale of the movable property of the Ixxxx company to the new hotel-restaurant operating company at a price set and invoiced by the first; that therefore, by declaring Franck Hxxxx guilty of abuse of corporate assets without investigating whether, given the context, the disputed negotiations had not on the contrary made it possible to protect both the corporate heritage and the credit and reputation of the Ixxxx company , the court of appeal did not legally justify its decision with regard to the aforementioned texts “; termination of the eviction procedure and the sale of the movable property of the Ixxxx company to the new hotel-restaurant operating company at a price set and invoiced by the first; that therefore, by declaring Franck Hxxxx guilty of abuse of corporate assets without investigating whether, given the context, the disputed negotiations had not on the contrary made it possible to protect both the corporate heritage and the credit and reputation of the Ixxxx company , the court of appeal did not legally justify its decision with regard to the aforementioned texts “;

On the third ground of appeal, based on the violation of articles 437, 3 °, of the law of July 24, 1966, 321-1 and 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 Jean-Luc and Claudine Exxxx guilty of the offense of concealment of abuse of corporate assets committed by Franck Hxxxx;

“on the grounds that on May 30, 1994, the Exxxx spouses issued an invoice for 106,740 francs in the name of the Ixxxx company and, on June 28, 1994, Franck Hxxxx settled this invoice with the funds of the Ixxxx company; that the Exxxx spouses knew that the negotiation services invoiced by them had been carried out for the benefit of the company Pxxxx of which they were managers, this company being the sole beneficiary of the precarious lease granted by Uxxxx on the business previously operated by Ixxxx; that the couple knew full well that ‘by having the invoice of 106,740 francs settled by SA Ixxxx, Franck Hxxxx was committing the offense of abuse of corporate assets;

“then, on the one hand, that the offense of concealment supposes the previous commission of another offense; that the offense of abuse of corporate assets is carried out by the illicit use made of the assets of the company; that it appears of the facts of prevention and of the own findings of the judgment under appeal that prior to or concomitantly with the alleged concealment, having consisted, according to the quote, in the establishment of the invoice of 106,740 francs, the company Ixxxx had not yet paid no invoice, which has not yet been issued; therefore, no offense has preceded the supposed concealment, which is therefore not constituted;

“then, on the other hand, that concealment is an intentional crime, which supposes knowledge of the fraudulent origin of the concealed objects; that, in their writings, Jean-Luc and Claudine Exxxx argued that the objective of the negotiations was for them to save the tool that constituted the building, the customers and to maintain the eight jobs of this hotel-restaurant employing staff; that consequently, by abandoning the arguments of the defendants and by confining themselves to asserting that they knew full well that by establishing the invoice of 106 740 francs in the name of the company Ixxxx, they committed a concealment of abuse of social goods, the court of appeal did not legally justified its decision with regard to the texts referred to above “;

The means being united;

Whereas it follows from the judgment under appeal and from the judgment which it confirms that, on May 30, 1994, Jean-Luc Exxxx and his wife Claudine Pxxxx, co-managers of the company Pxxxx, established an invoice for 106,740 francs and sent it for payment to Franck Hxxxx, president of SA Ixxxx, who acquitted it on June 28, 1994; that, according to the liquidator of the latter company, designated the 21 March 1997, this invoice did not correspond to any benefit in favor of the SA Ixxxx;

Whereas, to find Franck Hxxxx guilty of abuse of corporate assets and the Exxxx spouses of concealment of this offense, the Court of Appeal holds that the first paid this invoice to the second to preserve his job and that of his wife although the amount claimed does not concern the company of which he was the manager, that the services invoiced by the Exxxx spouses had been carried out for the exclusive benefit of the company of which they were the managers and that, knowing the difficulties of SA Ixxxx, they knew that Franck Hxxxx had committed an abuse of social good;

Whereas in the state of these statements, the judges of the second degree have, without exceeding their referral, justified their decision;

From which it follows that the means must be discarded;

And considering that the stop is regular in the form;

DISMISSES the appeals;

On the report of the adviser ROGER, the observations of the professional civil society WAQUET, FARGE and HAZAN, lawyer in the Court, and the conclusions of the lawyer general LAUNAY; M. COTTE president.

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