Extract
[...] How to distinguish between fraud and breach of trust and avoid any confusion between these two offenses? The criminal chamber of the Court of Cassation has recently expanded the contours of the crime of breach of trust, now applying it to buildings, including those given on a precarious basis (Court of Cassation, Criminal Chamber March 2024, appeal no. 22-83.689). This reversal shows how the constituent elements of different penal offenses can evolve and be redefined over time by case law. [...]
[...] In the first case, for breach of trust, this initial fraud is non-existent in that the perpetrator is the holder and possessor of the relevant property. In the context of transfer by another person, this transfer must be both voluntary and precarious according to the jurisprudence. In the second case, that of swindling, the perpetrator of the facts gives the impression that he is the owner of the property. However, this is not the case. He then uses fraudulent maneuvers with the intention of deceiving the victim. [...]
[...] However, the Criminal Chamber of the Court of Cassation has recently excluded them in a ruling of 14 June 2023: 'In the case of swindling, family immunity does not apply when the offense relates to payment means, such as a credit card, in accordance with the second paragraph of Article 311-12 of the Penal Code' (No. 22-84.591). The prescription period is the same for swindling and breach of trust, but their starting point differs. For swindling, the deadline runs from the delivery of the thing, or from the day when the offense becomes apparent to vulnerable people. For breach of trust, it begins when the offense is discovered and can be established in conditions that allow for prosecution. [...]
[...] As for the moral element, it aligns with that required for breach of trust. It should be noted, however, that mere negligence or the lack of precautions taken does not in any way characterize fraudulent intent. The criminal chamber of the Court of Cassation on April (n° 22-82.646) also provided clarifications on swindling in judgment and in particular on the constituent elements, on the characteristics of attempted swindling in judgment: "the attempted swindling in judgment was characterized by the presentation of inaccurate facts aimed at inducing the jurisdiction into error." Finally, while fraudulent intent is present in both cases, its manifestation is different: in swindling, it precedes the act (initial fraud), while in breach of trust, it occurs after the transfer of the good. [...]
[...] As for breach of trust, it is governed by Article 314-1 of the Penal Code. Articles 314-1-1 to 314-4 of the Penal Code concern the aggravating circumstances of the said offense. In addition, the incrimination of the two offenses has the same reason for being, the same ratio legis, namely the protection of movable and immovable property, of the goods of each (Court of Cassation, Criminal Chamber March 2024, No. 22-83.689). Thus, the legislator and the judges adopt a clear posture: to preserve individual property and to punish any form of fraudulent appropriation. [...]
