What is breach of trust ?
The breach of trust is defined in article 314-1 paragraph 1 of the Penal Code as the fact “to misappropriate, to the prejudice of another person, funds, values or any other property which has been given to him and which he has accepted on the condition that he gives them back, represents them or uses them in a specific way”.
This offense thus presupposes, in advance, the handing over of a thing that has not been used for the purpose for which it was intended and ultimately the prejudice of the owner of the thing entrusted, who can no longer exercise his rights over it.
The offense of breach of trust is thus characterized as soon as the following are established :
- On the one hand, the material element of the offense, i.e. the misappropriation of the thing previously handed over and the prejudice of another person – the owner of the thing entrusted – due to this misappropriation,
- On the other hand, the moral element of the offense, namely the fraudulent intention of the offender to misappropriate the property and to behave as the owner of the thing.
What type of goods does breach of trust involve?
The traditional example of the offense is the misappropriation of a material thing, in particular following a loan for use: it could be, for example, the non-return of a vehicle at the end of a rental contract.
The traditional example of the offense is the misappropriation of a material thing, in particular following a loan for use: it could be, for example, the non-return of a vehicle at the end of a rental contract.
For some years now, the offense has taken on a new scope, with the dematerialization of things misappropriated. It is indeed admitted that the misappropriated thing can be immaterial : for example, the information relating to the customers of a company ( Court of Cassation, criminal chamber, November 16, 2011) or a bank card number (Court of Cassation, criminal chamber, November 14, 2000).
Case law has long held that embezzlement of real estate (house, apartment, etc.) does not constitute a breach of trust. Sincea ruling by the French Supreme Court (Cour de cassation) on March 13, 2024, it is now considered that the misuse of real estate, reflecting the intention of the person concerned to act as owner, does constitute a breach of trust. However, this ruling sets out a restrictive criterion: to be punishable, misuse of the building must “irreparably damage its usefulness”. A landlord who is the victim of an indelicate tenant will therefore often have to take civil action to have the tenant evicted.
The repression of breach of trust
Article 314-1 of the Penal Code punishes the breach of trust with 3 years of imprisonment and a fine of 375,000 euros.
The penalties are increased to 7 years’ imprisonment and a fine of 750,000 euros under Article 314-2 of the Criminal Code, when the breach of trust is committed by a person who appeals to the public in order to obtain the delivery of funds or securities or by any other person who habitually engages in or assists, even as an accessory, in transactions involving the property of third parties or to the detriment of an association that appeals to the public for the collection of funds for humanitarian or social assistance or to the detriment of a vulnerable person.
The penalties are increased to a sentence of up to 10 years’ imprisonment and a fine of 1,500,000 euros under Article 314-3 of the Criminal Code, when the breach of trust is committed by a judicial representative or by a public or ministerial officer either in the exercise of or in connection with the exercise of his functions, or by reason of his capacity.
Additional penalties may also be imposed in accordance with Article 314-10 of the Criminal Code and the penalties provided for in Article 131-39 of the Criminal Code may be incurred by legal persons.
How to distinguish between breach of trust and other property offenses ?
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Breach of trust and theft :
Theft is the fraudulent taking of another’s thing.
Thus, theft and breach of trust are different, in that breach of trust is characterized by the misappropriation of a validly delivered thing, whereas theft is constituted by an appropriation of the property without prior delivery.
The distinction in principle is simple but in practice, the nuance is fine and is made case by case. In case of doubt, the victim filing a complaint will probably have interest to aim at both qualifications.
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Breach of trust and fraud :
The distinction between breach of trust and fraud is essentially based on a temporal criteria of the action.
The breach of trust consists of fraudulent behavior subsequent to the delivery of the thing, whereas fraud is characterized by fraudulent behavior (deceitful maneuver) prior to the delivery of the thing.
The cumulation of qualifications of these two offenses can also be retained by the judge ( Decision of the Criminal Chamber of Cassation of May 24, 1983).
What is the statute of limitation for breach of trust ?
The breach of trust’s statute of limitation is six years. This period can be interrupted by filing a complaint with civil action or by a direct summons
The statute of limitation traditionally starts from the date of commission of the offense. Nevertheless, when the offense is hidden or concealed, the starting point of the time limit is postponed until the day when the facts could be ascertained under conditions allowing the exercise of public action (See in particular the decision of the Court of Cassation of May 20, 2011, number 11-90.033).
The criminal lawyer in cases of breach of trust
Given the legal and procedural specificities of breach of trust, it is essential for the victim of the offense, as well as for the person suspected of having committed it, to be assisted by a criminal lawyer.
The latter will indeed be able to :
- As regards the defense of the victim, to draft if necessary a complaint or a direct summons in the rules of the art, to argue on the constitutive elements of the offence, to demonstrate and to quantify the damage of his client…
- As regards the defense of the accused, to raise the nullity of the procedure, to discuss the reality of the offence by relying on the rules of the general criminal law and the special criminal law, to put forward the statute of limitation if possible…