MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
1. Fraud Claims 1.1 General Characteristics of Fraud Claims Monaco’s civil law system provides for the possibility of filing civil and criminal claims for: • fraud; • making false statements; • corrupt payments; • the equivalent of conspiracy; and • misappropriation. Victims may be parties to the criminal prosecutions, represented by counsel and with access to the file, and may demand damages. Alternatively, they may sue before the civil courts. The status of “victim” in a criminal prosecution is defined in Article 2 of the Code of Criminal Procedure: “The action to repair the damage directly caused by a fact that constitutes a penal infraction belongs to all those who have personally suffered. The action will be receivable, indistinctly, for all the damages, material, physical or moral.” Fraud The basic fraud infraction ( escroquerie ) is defined in Article 330 of the Penal Code as follows: “Whoever, either by using a false name or false quality, or by employing fraudulent manoeuvres to persuade anoth - er of the existence of false enterprises, of an imaginary power or credit, or to create the hope of a success, an accident, or of any other chimerical event, per - suades another to give him or deliver funds, moveable assets, effects, cash, merchandise, bills, promises, receipts or any other writing containing or operation an obligation or a waiver and who will have by these means defrauded or attempted to defraud all or a part of another’s fortune, is punished by imprisonment of from one to five years and a fine.” If the crime involves the issuance of a public offering of whatever nature, the prison sentence is extended to a maximum of ten years. Abuse of Confidence Abuse of confidence, as defined in Article 337 of the Penal Code, is a variant of fraud and consists of mis -
appropriating or dissipating assets entrusted for a specific purpose. The maximum jail sentence is three years. The sanctions are increased to five years if there is a public offering, or where a broker or professional has misappropriated funds – eg, escrowed funds. If a public official (notary or bailiff) or an employee to whom funds are regularly entrusted violates that trust, the maximum sentence is ten years. Corruption Corruption is sanctioned in Article 113 et seq of the Penal Code, which covers public officials or agents and private actors, regardless of nationality, and spe - cifically includes arbitrators. The acts that are sanc - tioned in Article 113-1 of the Penal Code include a public agent (defined as a person endowed with pub - lic authority) retaining a personal interest in an opera - tion or enterprise over which they have authority, and passive or active influence peddling (Article 113-3 of the Penal Code). Passive corruption is the crime committed by the corrupted person (public or private), whereas active corruption is committed by the corrupter. Both are sanctioned in Article 113-2. False Documents and Testimony Specific procedures are provided for allegations of the production of false documents in civil procedures (in Articles 290 to 299 of the Code of Civil Procedure, or CPC). Where there is an allegation during a civil pro - cedure that a document has been falsified, a declara - tion must be made to the clerk of the court. The court may then compel the person(s) to appear. Since there is no live personal testimony in civil actions, this is a rare occurrence. Alternatively, the court can name an expert to verify the document. The person claiming that the documents are false can file a criminal complaint during the trial, as can the public prosecutor. Unless the presiding judge decides that the determination of the validity of the document does not impede the case from going forward, the trial will be suspended pending the determination. The elements of faux en écriture (Article 90 et seq of the Penal Code) are the alteration of the truth com - mitted with the knowledge of creating harm in a piece
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