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The misuse of corporate assets is an offense under the legislation on commercial companies. Consequently, the reference text is not the Criminal Code but the Commercial Code which, in an entire title devoted to criminal provisions, is equivalent to a real Criminal Code for commercial companies.
The problem is complex because the leader is not always aware of the illicit nature of his behavior, because the abuse of corporate assets is considered by the social body as an artificial offence. This is the reason why the intervention of the criminal judge in the business environment is delicate.
However, a moralization of business life is necessary, because the social leaders can be brought to yield to certain temptations to which the administration of the company exposes them.
In particular, there may be confusion between personal and corporate assets. This behavior must therefore remain a criminal offence. Its gravity with regard to business life prohibits any idea of decriminalization. It is an offense that raises concerns with regard to its definition because the terms of the law are insufficiently precise (*).
Also, the abuse of corporate assets is a formidable weapon in the face of economic and financial crime. It even seems that judges tend to take advantage of this situation to take some liberties with the major foundations of criminal matters and in particular with the principle of legality which is the keystone of French criminal law.
The new Criminal Code has enshrined the principle that criminal law is to be interpreted strictly (2). However, in matters of misuse of corporate assets, extensive interpretation tends to become the rule. Although the objective is commendable, the method is very open to criticism because it is up to the legislator to intervene to create clear and precise texts in the name of the principle of legality. We cannot ask the judge to replace the legislator.
Download the article published in “la gazette du palais” in pdf format
Law firm of Maître Grégory DAMY , lawyer at the bar of Nice: misuse of corporate assets.
