Bankruptcy Law

Article L. 654-12, I of the Commercial Code punishes by seven years' imprisonment and a fine of EUR 750,000 any receiver, legal representative, liquidator or commissioner for the enforcement of the plan who wilfully harms the interests of the creditors or the debtor, either by using for his own benefit sums received in the performance of his duties, or by obtaining for himself advantages which he  …

Infringements committed by agencies acting in insolvency procedures

Article L. 654-12, I of the Commercial Code punishes by seven years' imprisonment and a fine of EUR 750,000 any receiver, legal representative, liquidator or commissioner for the enforcement of the plan who wilfully harms the interests of the creditors or the debtor, either by using for his own benefit sums received in the performance of his duties, or by obtaining for himself advantages which he knows are not due, or by using, in his own interest, the powers at his disposal in a way which he knows to be contrary to the interests of the creditors or the debtor.

A receiver who knowingly and in his own interest allows the company's claim against the manager to be extinguished, and acquires an interest in the company's capital with the help of a nominee , makes use of his powers contrary to the interests of the debtor or creditors. The receiver is also guilty of embezzlement when he recommends to the companies under his administration the involvement of companies whose de facto managers are his subordinates, in order to lighten the workload of his office, reduce the burden of his overheads and enable him to receive net of charge the expenses and fees for which he can request payment in application of the legal scales .

The intentional element of the offense of embezzlement results from the legal representative's mere awareness of the harm to the interests of creditors or the debtor, in order to satisfy his own personal interests . The legal representative who transfers funds from his professional account to his personal account, from which he withdraws them to purchase savings bonds, and who, once they have matured, collects the interest before transferring the nominal amount back to the study account, is guilty of the offence of embezzlement, since the mere violation of the legal provisions requiring him to deposit creditors' funds in an account opened at the Deposit and Consignment Office (Caisse des dépôts et consignations) characterizes fraudulent intent .

Furthermore, Article L. 654-12, II of the Commercial Code punishes by seven years' imprisonment and a fine of EUR 750,000 any receiver, legal representative, liquidator, commissioner for the enforcement of the plan or any other person, with the exception of employee representatives, who directly or indirectly acquires the debtor's assets on his own behalf, or uses them for his own benefit, having participated in any capacity whatsoever in the procedure. The court sitting at the opening of the receivership procedure of the debtor company is to be considered as having “participated in the procedure” within the meaning of Article L. 654-12 of the Commercial Code . The offense of acquiring the debtor's assets on one's own behalf is punishable as soon as the interested party has taken, or caused to be taken, the steps leading to the acquisition of these assets, and acts as if he/she owns them . The receiver in a receivership procedure thus incurs criminal liability when, through a nominee, he purchases 10% of the debtor's shares . The president of the commercial court and bankruptcy judge who knowingly fails to oppose the takeover of the debtor company's assets by another member of the court is complicit in embezzlement . The court hearing the case must declare the acquisition null and void, and rule on any damages claimed . According to the criminal division of the Court of Cassation, declaring the acquisition null and void is not a prerequisite for conviction for embezzlement .

The debtor, who is excluded from the restrictive list of persons entitled to bring an action before the criminal courts set out in Article L. 654-17 of the Commercial Code, is not entitled to bring a public action, by way of direct summons, against the organs of the procedure on the grounds of embezzlement or complicity in this offense .

Cass. crim., 29 September 1999, LawLex202300008747JBJ (RJ).

Cass. crim., 26 September 2001, LawLex202100002196JBJ (RJ).

Cass. crim., 10 March 2010, LawLex202100001903JBJ.

Cass. crim., 13 January 2016, LawLex202100001907JBJ.

Cass. crim., 5 July 1993, LawLex202300008744JBJ (LJ).

Cass. crim., 30 June 1999, LawLex202300008745JBJ (RJ).

Cass. crim., 19 June 1997, LawLex202300002144JBJ (RJ).

Bankruptcy Law

1043. Infringements committed by agencies acting in insolvency procedures

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1043. Infringements committed by agencies acting in insolvency procedures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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