France: Fraudulent Misuse of a Document Signed in Blank
| Pages | 359-360 |
| DOI | https://doi.org/10.1108/eb025806 |
| Date | 01 February 1997 |
| Published date | 01 February 1997 |
| Author | David Peacock |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 4 No. 4 — International
INTERNATIONAL
France: Fraudulent Misuse of a Document Signed
in Blank
David Peacock
COURTS' FLEXIBLE RESPONSE TO
STATUTORY REPEAL OF THIS SPECIFIC
OFFENCE
The disappearance of the offence of fraudulently
misusing a document signed in blank (abus de
blanc-seing)
in the new penal code has raised the
question of the statutory basis of prosecutions that
were based on the former s. 407 of the criminal
code.
(This read: 'Whoever, misusing a document
signed in blank, fraudulently writes on it an obli-
gation or discharge, or any other matter that may
compromise the person or financial standing of the
signatory, shall be subject to the penalties stated in
section 405. In the event that the document signed
in blank shall not have been delivered to him, he
shall be prosecuted as a forger and punished as
such.')
In principle, the absence of such a provision
should lead to the termination of proceedings
under way, and indeed to the setting aside or
annulment of convictions as yet not final in
character on 1st March, 1994. But it may be that
the facts which are the subject of the charge or
which have been lawfully determined by the
judges of first instance can be legally classified as
another offence. Likewise, since the coming into
force of the new criminal code, we must ask on
what bases it is henceforth appropriate to, if neces-
sary, bring a prosecution.
GRENOBLE DECISION
A decision of the Court in Grenoble decided that
the repeal of the offence of fraudulently misusing a
document signed in blank
(abus
de
blanc-seing)
did
not cause the criminal character of fraudulent deal-
ings to disappear which can henceforth be prose-
cuted, notably under the charge of
abus
de
confiance
which translates as 'breach of trust' or 'fraudulent
misuse of funds' or 'embezzlement'; as defined, in
wider fashion, by s. 314-1 of the criminal code in
force on 1st March, 1994. The Court did, how-
ever, add that concerning facts arising before that
date which do not amount to the offence of
abus
de
blanc-seing
as provided for by the code that was
repealed the rule that a stricter statute cannot have
retrospective effect forbids the Court to appeal to
the offence defined in broad terms by the criminal
code in force today.
Section 314-1 reads in its first limb as follows:
'Fraudulent breach of trust consists in a person
misappropriating, to the detriment of another
party, funds, securities, or any property whatsoever
that may have been delivered to him or which he
may have accepted under the obligation to return
them, to produce them again or to make of them a
specified use'. This is more general than the provi-
sion of the old penal code, s. 408: 'Whoever mis-
appropriates or dissipates, to the detriment of the
owners, those in possession or holders, effects,
cash, goods, bills, receipts or any other writings
containing or carrying out an obligation or dis-
charge, which have only been delivered to him by
way of hire, deposit, mandate, pledge, loan for use,
or for remunerated or unremuncrated work, under
an obligation to return or produce them again, or
to make of them a specified use or employment,
shall be subject to the penalties contained in s.
406.'
The civil complainant in the Grenoble case had
pertinently pointed out that, in the enactment of
the new penal code, the legislator had, in abolish-
ing various particular offences, such as abus de
blanc-seing,
in no way intended to omit criminal
sanctions against fraudulent dealings by nature
criminal but rather to facilitate their prosecution
and punishment by the widening of pre-existing
general offences. That in this respect the generality
of the definition of abus de
confiance
given by s.
314-1 of the criminal code allows the bringing
before the criminal courts of any act of misappro-
priation by which the person concerned makes of
Page 359
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