Extract
[...] Swindling is currently defined as « the fact, either by the use of a false name or a false quality, or by the abuse of a true quality, or by the use of fraudulent maneuvers, to deceive a physical or moral person and thus determine them, to their detriment or to the detriment of a third party, to hand over funds, values or any goods, to provide a service or to consent to an act operating obligation or discharge » (article 313-1 of the Penal Code) Abuse of trust is characterized as « the fact by a person of diverting, to the detriment of another, funds, values or any goods that have been entrusted to them and that they have accepted on the condition of returning them, representing them or using them in a determined manner » (article 314-1 of the Penal Code). The confusion between these two offenses is frequent, both in legal practice and in public opinion. [...]
[...] Different sanctions: punishment and reparation Although the basic penalties for swindling and abuse of trust are similar, notable differences must be clarified. Historically, swindling has often been judged more severely due to its premeditated and deceitful nature. According to Articles 313-1 and 314-1 of the Penal Code, these offenses are punishable by five years of imprisonment and 375,000 euros in fines. However, aggravating circumstances can increase the penalties for swindling, particularly if it is committed by a person holding public authority or in an organized gang, with sanctions that can reach ten years of imprisonment and one million euros in fines. [...]
[...] Restitution seeks to restore the initial state, by returning the good to the victim or its legitimate owner. The 'damages-intérêts compensate the material or moral losses suffered». In the case of abuse of trust, restitution is often easier, the good not having been acquired in a fraudulent manner. These elements highlight the importance of precisely distinguishing between fraud and abuse of trust, not only to characterize each offense but also to determine the appropriate sanction, thus ensuring the proper application of the law and justice for the victims. [...]
[...] Their potential confusion therefore represents a challenge for lawyers and litigants. How, therefore, distinguish fraud and breach of trust, and what are the risks of confusion between these two concepts? To distinguish fraud from breach of trust and understand the risks of confusion, it is essential to examine their conceptual proximity,I), as well as the fundamental differences between these infractions,II). I. The conceptual proximity between fraud and abuse of trust: a source of confusion II. The infractions of fraud and abuse of trust share similarities that can lead to confusions. [...]
[...] This offense betrays trust because the perpetrator acts against the legitimate expectations of the owner. Both offenses violate the victim's trust, whether by believing in false information or by faith in the author's commitment to respect their promises. Confusion often arises in financial transactions where deception and betrayal of trust are predominant. Furthermore, these crimes are often judged in similar contexts, making their distinction difficult for victims and sometimes for judges. For example, if an individual acquires a property by deception but with the initial intention of restitution, it may be difficult to operate a clear distinction between these two offenses. [...]
