Introduction

Matrix organization

Mergers by absorption

Risks related to the expansion of the scope of criminal liability of legal entities

Validity conditions

Proof of delegation

Exemption from individual liability of delegator

Attribution of offense to legal entity

Delegations of authority

Criminal risk management within business organizations

Complicity in crimes against humanity

Breaches of secrecy

Personal data breaches

Theft

Extortion

Blackmail

Fraud

Misappropriation

Receiving/concealment of unlawfully obtained property (recel)

Attacks on automated data processing systems

Money laundering

Misappropriation by public official (concussion)

Corruption and influence peddling

Unlawful acquisition of an interest

Favoritism

Forgery and use of forgeries

Violation of Criminal Code

Offenses under the Monetary and Financial Code

Offenses under the Commercial Code

Environmental Code violations

Offenses arising from other codes

Types of offenses

Offenses under the Criminal Code, the Commercial Code, or the Environmental Code, Criminal procedure

White Collar Crime (en cours)

Like any intentional offense, misuse of corporate assets requires that the fraudulent intent of the company director be established . Articles L. 241-3, 4° and 5° and L. 242-6, 3° and 4° of the Commercial Code penalize the use of assets, credit, or votes by company directors in bad faith, with knowledge that their actions are contrary to the company's interest. The director must be aware of making …

Bad faith

Like any intentional offense, misuse of corporate assets requires that the fraudulent intent of the company director be established . Articles L. 241-3, 4° and 5° and L. 242-6, 3° and 4° of the Commercial Code penalize the use of assets, credit, or votes by company directors in bad faith, with knowledge that their actions are contrary to the company's interest. The director must be aware of making an abusive use of the company's assets, credit, powers, or votes, in contradiction with the company's interest. Fraud can notably result from the accounting manipulation (maquillage comptable) of the transaction carried out  or from maneuvers and concealments intended to give an appearance of regularity to acts contrary to the corporate interest with respect to the company's CEO .

The bad faith of the director can be established by the fact that he was not unaware of the very serious financial state of the company  and that his actions therefore went against the interest of the company . It most often arises from the materiality of the facts sovereignly observed. Thus, bad faith is characterized when the director lends, despite the company's financial situation, a sum that was never repaid to an agency he personally operates , sells company assets at a price he knows is undervalued , or transfers receivables to a group holding company by implementing cash advances for his benefit . Similarly, bad faith must be attributed to the corporate director who repeatedly withdrew from a company's treasury without any consideration , to the one who withdraws company funds to pay for personal expenses and travel costs around the world that were of no interest to the company , or to the director, a businessman, who decided on the payment of fraudulent commissions deposited in secret accounts while he could not have been unaware of the fraudulent nature of the operations to which he lent his support through the companies he managed .

By contrast, the intentional element of the offense of misuse of corporate assets cannot be directly inferred from the confusion between the company's assets and the personal assets of the defendants, without allowing them to invoke the possibility of offsetting mutual debts and claims , and must be dismissed in the case of bonuses debited from corporate accounts that were nevertheless recorded in the corporate accounting upon receipt , where there is mere negligence on the part of the manager who fails to use their powers to oppose transactions whose fraudulent nature they are unaware of , or when the executive attempts to mobilize available cash within the group in the common interest of the companies forming the holding, as well as their employees and creditors .

Cass. crim., 19 October 1971, LawLex202300007032JBJ; 19 December 1973, LawLex202300002158JBJ; 5 May 2004, LawLex202200001524JBJ.

Cass. crim., 18 June 1998, LawLex202200003422JBJ.

Cass. crim., 31 January 2007, LawLex202200006439JBJ.

Cass. crim., 22 November 1982, LawLex202300002253JBJ.

Cass. crim., 14 November 1988, LawLex202300002160JBJ.

Cass. crim., 19 December 1973, LawLex202300002158JBJ.

Cass. crim., 27 November 2013, LawLex202300007207JBJ.

Cass. crim., 24 February 1999, LawLex202300002163JBJ.

Cass. crim., 15 October 1998, LawLex202300007203JBJ; 19 October 1971, LawLex202300007032JB.

Cass. crim., 8 August 1995, LawLex202300007002JBJ.

Cass. crim., 5 October 1981, LawLex202300002166JBJ.

Cass. crim., 27 June 2018, LawLex202300007544JBJ; 19 October 1971, LawLex202300007032JBJ.

Cass. crim., 5 May 1997, LawLex202200001607JBJ.

Cass. crim., 5 June 1975, LawLex202300002159JBJ.

White Collar Crime (en cours)

202. Bad faith

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

202. Bad faith

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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