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)

The offense of unlawful taking of interest is an intentional offense. It presupposes that the perpetrator has the will and awareness to take, receive, or retain an unlawful interest in a company or operation that he or she is responsible for overseeing or administering . The moral element of the offense lies in general intent, which requires that the defendant must have been aware of taking an unl …

Moral element

The offense of unlawful taking of interest is an intentional offense. It presupposes that the perpetrator has the will and awareness to take, receive, or retain an unlawful interest in a company or operation that he or she is responsible for overseeing or administering . The moral element of the offense lies in general intent, which requires that the defendant must have been aware of taking an unlawful interest, as positive law does not require the characterization of a specific type of intent .

Culpable intent is characterized on the basisi of the fundamental obligation that a person in that position has not to participate at any stage in the decision-making process concerning the entities in which they have an in interest . The offense may notably result from the fact that an elected official deliberately maintains a confusion prohibited by law between his elective functions and his associative responsibilities or private interests , or, for a mayor, from his participation in a vote to obtain the public entity's coverage of a service exclusively intended for his benefit, even though a municipal councilor had informed him of the legal prohibition against his participation . However, it is not required that the public official was motivated by fraudulent intent .

The moral element can be inferred from the mere materiality of the offense . This is the case when a mayor favors the awarding of a contract to a company knowing the irregularity of its offer and its inability to fulfill it , when a president of a departmental council knowingly intervenes in the awarding of public works contracts to companies where his children are co-managers , or when a mayor delegates the signing of a contract to his deputy to maintain the appearance of regularity of the operation .

The professional quality of the defendant also constitutes a criterion for assessing the intentional element, particularly for an individual  with long experience in public service , except in the case of unavoidable error .

Cass. crim., 26 September 2000, LawLex202300001989JBJ, which recalls that the intent to commit the offense is sufficiently characterized by the fact that a professional's non-compliance with regulations constitutes a culpable negligence; 7 September 2005, LawLex202300001964JBJ, on the clearly expressed intent of a mayor to conceal the reality, which demonstrates his awareness of the illegality of the situation he believed he could evade; 15 November 2000, LawLex202300001903JBJ.

CA Grenoble, 13 June 2003, No 02/01533, LawLex202300001738JBJ; Cass. crim., 22 October 2008, No 08-82.068, LawLex202200008636JBJ, which specifies that the concept of general intent does not require the existence of a profit for the perpetrators of the harm.

Cass. crim., 14 December 2005, LawLex202300001730JBJ.

Cass. crim., 11 June 1998, LawLex202300002457JBJ.

Cass. crim., 9 February 2011, LawLex202300001813JBJ.

Cass. crim., 15 November 2000, LawLex202300001903JBJ; 9 February 2011, LawLex202300001813JBJ; 9 April 2015, LawLex202300001728JBJ.

Cass. crim., 7 June 2000, LawLex202300001837JBJ.

Cass. crim., 21 November 2001, LawLex202300001725JBJ; 27 November 2002, LawLex202300001602JBJ; 28 February 2007, LawLex202200008624JBJ; 22 October 2008, LawLex202200008636JBJ; 9 February 2011, LawLex202300001813JBJ; 5 April 2018, LawLex202300000141JBJ; 27 June 2018, LawLex202200009418JBJ; 4 March 2020, LawLex202200008744JBJ; CA Grenoble, 13 June 2003, LawLex202300001738JBJ.

Cass. crim., 27 November 2002, LawLex202300001602JBJ, according to which the criminal intent is established solely by the fact that the perpetrator knowingly committed the act constituting the material element of the offense.

Cass. crim., 17 April 2019, LawLex202200008752JBJ.

Cass. crim., 9 February 2005, LawLex202200008749JBJ.

Cass. crim., 15 November 2000, LawLex202300001903JBJ.

White Collar Crime (en cours)

147. Moral element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

147. Moral element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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