Nicolas Sarkozy announced Thursday at the University of Medef its intention to reform “quickly” the right of companies to release the entrepreneurs’ risk of any criminal error management “. This announcement has obviously put the judges in turmoil and caused anger of the National Judicial Council.

What is the purpose clearly protected by the Head of State? Mr Sarkozy is considering the reform of legislation “to make the French a taste of entrepreneurship”. “How have the taste of entreprebad1ba5723dd619dd6d6c729cd6d3fb0. Jpgndre to financial risk if additional risk systematically criminal, and if the slightest error management can lead to jail,” he added. He wants to end that the criminal law no longer penalizes french company directors who have committed “mismanagement” in the exercise of their functions as strongly today.

l should first be to clarify the concept of “management error”. It is clear just a felony committed against the interests of society or in a strictly personal profit or for a ruling minority. There are in addition to the error management a variety of tax fraud as the submission of financial fraud, embezzlement or misuse of company assets and fictitious jobs.

The current case law of civil and criminal courts have in these words that Chief d company has a duty of loyalty to the company: in fact the leader of the company must continuously take action to defend the interests of his company as the 1966 Act, in which there are many possibilities for criminalization.

Déjà, following the promulgation of the law, ie in the early 60s, a movement for decriminalization of business law, especially corporate law, followed, but he saved the faults the worst that could violate the duty of loyalty famous, considered as a fundamental principle: presentation of inaccurate accounts, dividends shadow, abuse of social goods … decriminalization advocated today by Nicolas Sarkozy seeks to bring an end to the movement started more than forty years by repealing the existing penal provisions against the most serious. Eventually, he would like to réforme of company law where the dispute does not fall more than the commercial courts, ie, strictly speaking, civil court and not criminal. It should be recalled that a civil court can not sentence a defendant to a fine only or payment of damages, so the only penalty is monetary. How can we accept the fact that an entrepreneur offender, having acted for his own benefit and to the detriment of his company was only ordered to pay a sum, not a penalty?

Que How about some clarification about the current case-law offenses in corporate law? Clearly, the Court identifies three cumulative criteria necessary in order to incriminate a head of company:

* It takes an act of usage: To Air hijacking or a mere provisional use of the property.
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* It should be an abnormal risk: the act must be run on the company including an abnormal risk of a financial point of view.
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* It takes a willingness on the part of accused s’avantager personally: the leader must have disregarded the interests of society, and they wanted a personal interest through its actions. He must have acted in bad faith for personal purposes, or promote any other company than his own.

A charge of a director of a company requires in summary it has mostly acted in order d a personal benefit whatsoever. The Court has recognized a material benefit for his own benefit or someone associated with him, a moral (relationship with a politician, businessman, a woman …) or an interest of a purely professional.

Les reactions to the speech from the tenant of the Elysee have not kept waiting. For Michel Sapin, député de l’Indre PS, the legislative and judicial reform will simply “limiting litigation firms to civil courts.” Meanwhile, the National Union of Magistrates found that Nicolas Sarkozy had “chosen the camp of the bosses” indélicats. “The criminalization of business law does nothing more than fraud in the law, when a businessman acting against the interests of his company,” said Emmanuelle Perreux, president of SNM.

The only valid argument today to justify such a reform would be the surcharge criminal courts, “burdened folders” under corporate law. It remains to consider how the United States treat their white-collar criminals, not hesitating to erect corporate bankruptcies in real scandals relayed by all national media as the Enron case, as pointed out Bruno Thouzellier, the Union of Magistrates.