MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
of writing destined to or apt to be used to prove a right or having the effect of a right. It is an aggravat - ing circumstance if the act that is falsified is among those considered to be authentic (notarial) or public (a document), and when the falsification is committed by a public official. False testimony in a civil case is punished under Arti - cle 302 of the Penal Code, while perjury in criminal cases (a distinction is made between correctional or lesser offences and criminal cases) is sanctioned in Articles 300 and 301. Conspiracy Conspiracy is covered in Articles 209–211 of the Penal Code, which sanction any association or agreement to prepare or commit crimes punished by at least five years’ imprisonment as an “association of malefac - tors”, or malfaiteurs , which is the equivalent of a con - spiracy charge. Role of a Civil Party In all these cases, the civil party can be a party to the criminal prosecution by seeking to participate in the investigation or trial (which is a possibility up until the first day of the hearing) or by initiating the investigation by filing the complaint ( plainte avec constitution partie civile ). The civil party can be awarded damages in the criminal proceedings. The civil party victim may also and concurrently sue the defendants in a civil proceeding, on the basis of breach of contract or on the general basis of civil responsibility (Article 1229 of the Civil Code), which is the basis for an action in the equivalent of tort. Article 1229 states that any act that causes harm to another obliges the person whose fault caused the damage to repair it. This includes fault by negligence and imprudence. Where there are concurrent civil and criminal lawsuits involving the same parties and facts, the civil court may suspend the civil action awaiting the outcome of the criminal action. 1.2 Causes of Action After Receipt of a Bribe A claimant whose agent has received a bribe may file a criminal complaint of passive corruption against the
agent and the person having paid the bribe, request - ing damages. The claimant may also file a civil action in breach of the agency contract. There may be ele - ments of abuse of confidence or fraud, as well as filing false documents. There may also be money launder - ing (Articles 218 and 219 of the Penal Code) or receipt of stolen property claims (Articles 339 and 340 of the Penal Code). All such claims can be concurrent. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts Parties who assist or facilitate the fraudulent acts of another can be charged as accomplices to the underlying crime. The receipt of fraudulently obtained assets is qualified as recel (receipt of stolen property, including property obtained through a crime), which is punishable under Article 339 of the Penal Code. Money laundering prosecutions are also captured under Articles 218, 218-1, 218-2 and 218-3, and 219 of the Penal Code. The burden of proof is now on those suspected of money-laundering to demon - strate the lawful origin of funds. Monaco’s financial intelligence unit, the Autorité Monégasque de Sécu- rité Financière (AMSF), has powers to initiate, together with the Prosecutor, the blocking any suspect funds or transactions, without the obligation of informing the owner in advance. The owner will only be informed once the order, or the decision of the judge des liber- tés confirming the blockage, has been served, which is generally several weeks later. A relatively new provision criminalising the organisa - tion of insolvency to avoid the enforcement of a judg - ment is provided for in Article 368-1 of the Penal Code and applies even before a judgment has become final. The criminal infraction extends to those who assist in creating the insolvency, including accomplices. The Penal Code specifically provides that accomplices will be jointly liable. Article 1022 of the Civil Code provides for the Paulian action, which allows creditors to challenge all acts performed by a debtor to defraud the creditors of their rights. The effect of the Paulian action is to render the transfer to a third party void, and therefore unenforce - able against the creditor.
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