Criminal responsibility in France

The criminal responsibility is the obligation to answer of the made Infraction S and to undergo the sorrow envisaged by the text which represses them.

In a Democracy, the Citoyen S have rights but also duties; the Liberté is accompanied by the responsibility.

With the difference of the Civil responsibility (which is the obligation to answer of the damage that one because by repairing it in kind or by equivalent, by the payment of Damages), the criminal responsibility implies a recourse by the State against a Trouble to the law and order.

That includes three large aspects:

the participation in an infringement
the various forms which can take this responsibility
the cases for exclusion of this responsibility

The participation

The author and the joint author

the material author of the infringement is that which materially makes the acts of execution of the infringement. Thus in the case of a murder it will be that which will give the mortal blow. For the infringements by omission it will be that which will not move whereas it had the possibility of saving somebody. Under the Old Mode a collective responsibility was envisaged. This one disappeared in the codes, although the Jurisprudence still uses the common fault, but it is especially in the case of criminal conspiracy (envisaged by art 450-1) that this concept is very long-lived. Indeed, in the event of criminal conspiracy, all the participants in the grouping are considered as principal author of the infringement.

the joint author is that which takes part in the action materially in with dimensions of the principal author, it incurs the sorrows planned for same the Infraction and this even if the principal author is finally declared irresponsible, in a case of insanity for example. The joint author can despite everything profit from extenuating circumstances, for example if he is minor or worsening for example in the event of repetition. One should not confuse this concept with that of accomplice, who would be for example that which provided the weapon to the killer.

the moral author is that which acts as slide to make commit the offense, for example that which would pay to make kill another person or to make conceal an object. Sometimes it is also called the intellectual author. The French right does not know really this concept and the judgment is made under complicity. It is what is called complicity by provocation or instructions. At the time of the passage of the imperial penal code with the new penal code, the commission of Réforme of the penal code had thought of the possibility of founding an autonomous criminal responsibility for the intellectual authors but this possibility was quickly abandoned vis-a-vis the difficulty in preserving at the same time the Liberté S and & the difficulty of implementation of such a modification of the code. It is however certain cases where the moral author can be continued for the offense him even, for example the provocation with the Suicide or the begging (the suicide and begging them even not being more of the offenses). The law known as “Perben 2” of March 2004 created an infringement specific of instigation to the crime, sanctioning the morals author of certain crimes, even when the instigation was not followed of effect.

The attempt

The Penal code declares that the author is not only that which makes the accused facts, but also that which, in the cases envisaged by the law, tries to make them.

The attempt made up since, is expressed by a beginning of execution, it was not suspended or missed its effect only because of circumstances independent of the will of its author| Penal code French |article 121-5

Is accessory to a crime or of an offense the person who knowingly, by assistance or assistance, facilitated of it the preparation or the consommation.

Is also accessory the person who by gift, promise, threat, order, abuse of authority or being able will have caused with an infringement or will have given instructions to make it| Penal code French |article 121-7

Article 121-4 of the Penal code specifies that the attempt at crime is punishable, the attempt at offense being punishable only when one special text to lay down it. The author of an attempt is considered as author of the infringement, it incurs the same sorrows as if the infringement were consumed.

Material element

The beginning of execution

The attempt must be expressed by a beginning of execution of the infringement. The agent is not any more at the stage of the preparatory acts, but did not consume the infringement yet. The beginning of execution is defined by jurisprudence like the acts “tending directly and immediately to the consumption of the infringement”.

Example: Lacour stop, crim. October 25th, 1962: Mr. Lacour pays an individual for the murder of the adoptive son of his mistress. The hired killer simulates a removal of the adoptive son, obtains his wages before denouncing Mr. Lacour with the police force. Lacour is continued in particular for attempted murder. He is discharged with the reason which its intrigues directly do not tighten and immediately with not died of the victim. It is actually about an attempt not of murder but at complicity of murder: no matter what it arrives, Lacour would never have been fatal, only accessory. For lack of acts tending immediately and directly to the consumption of the infringement, it does not have there a punishable attempt (the behavior of Mr. Lacour however which can be sanctioned under other qualifications).

The attempt at swindle to the insurance gave place to an important jurisprudence: the simple simulation of disaster is only one nonpunishable preparatory act, because it does not tend immediately and directly to the handing-over of the sums by the insurance. On the other hand, the request addressed to the insurance following a false claim at the police services is constitutive of beginning of execution. The accompanied false claim fraudulent schemes, of a setting in scene, also could be regarded as a beginning of execution.

The voluntary absence of desistance

The attempt is an infringement missed against the will of its author. The active repentance, former to the consumption of the infringement, paralyzes any continuation.

This mechanism can be explained different way. The agent which voluntarily gave up its infractionnelle company revealed that it was not dangerous. The law encourages the future delinquent to give up his gesture, offering impunity in reward to him. One can also explain the mechanism by the justification of the repression of the attempt: it is a question of punishing the agent whose irrevocable punishable intention did not lead to the consumption of the infringement. The agent which gives up makes the proof thus that its intention was not irrevocable: there is no attempt.

If the infringement missed its goal apart from the will of the offender (missed shooting, unexpected passage of a passer by or police force, unexpected desistance from a comparse, intervention of the police force), sometimes made victim (escape of the kidnapper because of the cries of the victim: crim. April 26th, 2000), the attempt is punishable.

The voluntary absence of desistance inevitably does not mean the intervention of external cause: Crim. January 10th, 1996 considers established the assault with intent to commit rape which could not lead because of a “sexual breakdown” of the criminal.

The difficulty can arise with regard to the mixed causes of desistance; for example, a friend moralizer dissuades the agent to make burgling projected (crim. March 20th, 1974). Desistance is not forced by external circumstances, but is not spontaneous either. It is enough to refer to the letter of article 121-5 of the Penal code: the attempt is made up when it led only because of circumstances independent of the will of its author. The foreign causes with the will must be exclusive, or at least determining, so that the attempt is punishable.

The problem of the escape of the agent by fear, for example if he heard a noise, is business of appreciation on a case-by-case basis. It would seem that jurisprudence generally leans for impunity when the fear is spontaneous.

Voluntary desistance must intervene before consumption of the infringement to be exonératoire of responsibility. Some special texts reward the active repentance after consumption for the infringement, such as for example as regards criminal conspiracy.

Moral element

The author of the attempt must have had the will to consume the infringement. This element, which does not call a particular remark, is however essential. It is this infractionnelle will which justifies the repression of the attempt, apart from any result, therefore apart from any disorders manpower with the law and order.

A particular case of attempt: the impossible infringement

One indicates as impossible infringements the behaviors which did not lead to the consumption of the infringement because not of an awkwardness or a unforeseeable occurrence, but because of an objective impossibility to commit the offense.

Certain impossible infringements are accused by the legislator: thus, the old code envisaged an offense of abortion of presumedly pregnant woman. One can bring this incrimination closer to the provisions making to reference to real or supposed quality certain people, in particular with regard to discriminations (article 225-1 of the Penal code). It could seem impossible to be guilty of anti-semitism towards a nonJewish person, but the legislator represses in this case the purely putative infringement, infringement existing only in the spirit of his author.

There remain impossible assumptions of infringements not envisaged by the legislator. The jurisprudence of the XIXe century had initially considered that, the infringement being impossible, repression was pareillement impossible.

The infringement not having been consumed, the only ground of possible repression is that of the attempt.

The reasoning leading to impunity is based on the definition even attempt: the beginning of execution being consisted acts tending directly and immediately to the consumption of the infringement, when consumption is impossible, it cannot exist acts there tending directly and immediately. There thus does not exist punishable attempt. There does not exist besides of disorder to the law and order.

This reasoning, which has for him the principle of legality and a certain rationality, let escape repression agents which had however been the proof of their dangerosity, from the irrevocability of their criminal resolution.

Vis-a-vis this reproach, jurisprudence borrowed a center gate, taking as a starting point doctrinal proposals which distinguished in particular between absolute and relative impossibility. Impossibility is absolute when the object of the infringement does not exist, as in the murder of a corpse, or when the means are intrinsically ineffective, as in poisoning by a nontoxic substance. Impossibility is relative when the object exists but is temporarily insusceptible to be reached (plundering of empty trunk of church) or when the average employees could have been effective (badly drawn shot). The doctrines also proposed to distinguish impossibility in fact (repressible) and right (it misses a component of the infringement, nonrepressible).

None of these criteria prove satisfying intellectually nor juridically.

The Court of appeal finally chose the systematic repression of the impossible infringements in its stop “Perdereau” of January 16th, 1986.

It was acted as the species of an attempted murder operated on a corpse.

The Court of appeal stresses that the preliminary death of the victim is a circumstance independent of the will of the author, who analyzes himself like an absence of desistance voluntary having led to the failure from the projected infringement.

She adds that the violences exerted against the corpse constitute a beginning of execution of the murder. This waited does not correspond to the traditional definition of the beginning of execution. To in no case blows carried to a corpse cannot directly lead and immediately, nor even indirectly or long-term, with died of a human person.

It is about a putative infringement, which exists only in the spirit of its author, but who is repressed because the blows had the aim of carrying out the infringement.

It is noted that the beginning of execution is not the principal element of the attempt; it would be rather about a means of proving the irrevocable intention.

Since this stop the question of the survival of traditional solutions arises about the imaginary infringements: is the diversion of minor made on a major person an attempt at diversion of minor? Is the assassination made by the means of magic spells or envoûtements an attempted murder? Is the flight of a good which one is actually owner an robbery attempt?

The doctrines exclude repression from these assumptions to the reason which they would not correspond to any incrimination, contrary with the attempt at impossible infringement. One however badly perceives the difference with the case of the murder of corpse.

The danger is to fall into repression from the simple infractionnelle will, which returns to an offense of opinion.

The accomplice

The Complicité can be defined like a temporary, temporary agreement between individuals who will make or to try to make one or more Infraction S. Plus simply the accomplice is that which took part in the act without taking share with the components of the infringement. As for the infringement complicity answers has material elements and moral as has a legal element:

Material element

the legislator defined precisely and in a restrictive way the behaviors being able to be accused with the title of complicity:

assistance or assistance: It is the assistance brought to the preparation or to the commission of the infringement, that will make the guet required plugs for forgeries Document S or lend a car.
the provocation or instigation: It is a behavior pushing the author of the infringement to make it, by using means envisaged by the legislator; thus all the forms of incentive are not condemnable. Only the incentives made with the means are punishable:

of the gift;
of the threat;
of the promise;
of the order;
of the being able or abuse of authority.

Moreover whatever the method used is needed that it is sufficiently suggestive, individual and direct. The simple council or the simple suggestion could not thus be condemned. In addition this incentive must be followed by effect, if the murder is made two years after and for other reasons this incentive could not be condemned either.

instructions: they are Information S given to facilitate or to allow the realization of the Infraction, thus to entrust the plan of a bank has a future hold-up man. It is necessary so that there is complicity capacity to establish causality.

The legislator also defined a certain number of cases or complicity was not punishable:

the passive contest: By principle the abstention punishable, and this is never done the object of a relatively constant Jurisprudence. In certain case however, the judge decided that the inaction could be punishable in particular when the person has a protective role with respect to the author, for example the parents, as of the people of which it is the trade, police officers or, guard… Thus in 1989, a dominating mother was condemned to have left her weapon to the provision of her son who made use of it to kill his father. The doctrines think that the accomplice “by abstention” is punishable if it were informed of the infringement, the means of being opposed to it and that it abstained from some so that the infringement is consumed.
the posterior contest: By principle, assistances brought after the principal action is carried out are not condemnable with the title of complicity but there still in certain case the legislator envisaged exceptions, accusing certain behaviors: the concealment of the product of an infringement, or the author of a crime, for example. Jurisprudence admits that posterior help is constitutive of complicity if it results from a former agreement (but one can suppose that the assistance is actually consisted the agreement itself; indeed, it is the promise made with the offender carry help to him after the infringement which decided it to pass to the action). The Court of appeal also seems to approve the judgment of the assistance brought a posteriori when the offender one is accustomed of the offense, and that this help encourages it to reiterate his behavior.

Moral element

The material element could not be the only criterion, that would generate a climate of suspicion prejudicial to the life in company. Therefore only one person can be accessory who acts with full knowledge of the facts. It is necessary that the accomplice is with the current of the goal of that which it helps and which he adheres to his project. Moreover if the project which was presented to the accomplice differs from that indeed carried out, only will be taken into account with respect to the accomplice the project which he knew. Thus if it lends a weapon intended to impress and not to kill, it cannot be held responsible for the murder, one also needs for that the difference between the project and reality is sensitive, thus if the project spoke about a simple flight and that it of it is a burglary the sanction does will take into account the burglary. Normally there cannot be complicity for a nonintentional Infraction but in certain case, in particular the faults of imprudence, for example in incentive has to burn a red light or has to lead in a state of intoxication, complicity can be retained.

Legal element

The criminal Law contrary to the Civil law, leaves very little freedom of interpretation to the judge and the legislator must envisage it with what answered legally an act of complicity and in particular the Théorie of the loan of criminality:

the principal fact must be an infringement, thus one cannot be continued to have helped with the realization of an act which is not an infringement. The case of provocation to the suicide mentioned above is an infringement is, no matter what the suicide is not it.
In the old penal code it was necessary that the infringement has a certain gravity (at least an offense) but in the new one of complicities can be defined for infringments.
the principal fact must be to be made: thus an accomplice who would organize until all but whose principal author would not begin the execution could not be continued. It is necessary that at least the infringement was tried. If a fact can justify the infringement, it self-defense for example, the infringement disappears and consequently complicity too. In the event of immunity, flight between husband, the accomplice cannot be continued, except if the judge manages to make of the accomplice a joint author in which case this one is always under the influence of continuation.

In procedure, the term of limitation runs as from the same day as for the principal author, the withdrawal of complaint by a victim puts an end to the continuations against the accomplice too. A real amnesty of the Infraction profits there too with the accomplice.

Another question is to know if the complicity of complicity is condemnable, the texts do not specify anything above it and the Jurisprudence is rather severe. This one generally condemns complicity until the third degree.

Moreover, if it is necessary that the infringement is punishable so that complicity is it, it is not necessary necessarily that the infringement is punished. The judgment of the accomplice is not related to the sanction of the principal author. Thus if the principal author is not continued due to insanity the accomplice is always him liable to continuation, the same if the principal author died meanwhile or if it could not be stopped.

Incurred sanction

The principle is that the accomplice incurs the same sorrows as the principal author. The old penal code provided that he is condemned like this one. In the new one, it is envisaged condemnable like an author, therefore as if it had acted as an author but not a forcing the same sorrow as the real author. Moreover it is necessary that it could commit the offense so that he can be condemned like an author, thus a Infraction being able to be made only by one agent of the police force whereas the accomplice is only one ordinary person. Moreover from now on the personal circumstances being able to play in the favor or the discredit of the principal author do not play any more for the accomplice whereas real circumstances of the act (effraction, wearing of weapon, provocation…) who could play in discredit or the favor of the author plays for the accomplice. The mixed circumstances (personal and real) should not apply normally any more to the accomplice. For example the accomplice of a parricide will be punished only like one simple murderer. A contrario the son accessory to the murder of his father will incur a sorrow for parricide whereas the principal author is punished for a simple murder.

Responsible people: the principle of responsibility for the personal fact

The natural persons subject of the criminal responsibility

According to article 121-1 of the CPC: no one responsible penally only for its characteristic is not made. This rule was only jurisprudential in the old code. There exists an exception, they are the acts made by a person being placed under the authority of another. In this precise case, the person having authority can be condemned for the acts made by the person placed under her authority. Thus it of a head of undertaking is whose employee would cause an accident whereas it was in delivery for the company. The head of undertaking can escape this responsibility by proving that there was a delegation of authority former to the infringement. In which case it will be the agent of the authority which will be made responsible.

Case of the minor

Normally the quality of the person does not influence her criminal responsibility, except if he is minor. This differentiation is based partly on a difference in appreciation of the faults by the child and the adult. The minor thus profits from specific courts, but the procedure it also will of course know differences like the sanctions, which are not completely the same ones. The art 122-8 of the CPC known as: the minors found guilty of Infraction S penal are the subject of protection measures, assistance, monitoring under the conditions envisaged by a particular law. This law determines the conditions under which sorrows can be marked against the minors of more than 13 years.

History

Until 1912, there did not exist specific minor salary. It was simply expected that if a sorrow were marked against a minor, this last profited from the excuse of minority, which reduced half normally the incurred sorrow. The law of the July 22nd 1912 comes to transform the system with the installation of jurisdictions specialized for the minors, as well as an absolute presumption of irresponsibility for the minors of less than 13 years. Special sorrows like the Release on probation are also created, which makes it possible to place the minor in an institution controlled by a delegate at the release on probation and which thus allows rehabilitation. Then the ordinance comes from the February 2nd 1945 which will be altered on several occasions but which is always in force, and which defined the bases of our current system. In this system, it is the Personnalité of the author more than the act itself which returns in account. It is a system before very preventive which aims more at avoiding the repetition that to sanction a fault. Unfortunately in practice measurement repressive are more often marked than educational measurements.

Implementation of the responsibility for the minor

In France, the minor of less than 13 years always profits from an absolute presumption of irresponsibility whereas the minor from 13 to 18 years profits only from one relative presumption.

Minor of less than 13 years: The presumption although irrefragable does not prevent the minor from appearing before the court. It can even be the subject of an equivalent of the police custody called selected, 10 hours maximum lasted dune, as from the moment when it has more than 10 years and under particular conditions. It could be the subject of nonrepressive measurements (thus educational) of assistance even of monitoring.
Minor between 13 and 18 years: It also profits from a presumption of irresponsibility, but this one being only relative, it can thus be called into question. The minor can thus profit from similar measure to those planned for the minor of less than 13 years, but also of measurements closer to that of the major ones. It is the judge who chooses if it is directed towards an educational way or a repressive way which can lead to the Prison. The minor profits on the other hand, as it was the case before 1912, of the excuse of minority which decreases by half the sorrow incurred for less than 16 years obligatorily, and on decision of the judge for less than 18 years. The Jurisprudence tends to reject penal irresponsibility to go towards an attenuated criminal responsibility of the minor.

The responsibility be qualities (responsibility for the leaders and decision makers)

The mechanism of the responsibility be qualities

In order to ensure the respect of certain legal or lawful regulations, the legislator took the practice, during the XXe century, to match them penal sanctions.

They are in general infringement-obstacles, i.e. of incriminations intended to prevent the supervening of important damage, for example hygiene safety to work, of environment, government contracts, trade-union freedoms…

So that an infringement can be described as preventive, it must accuse a detrimental behavior not but rather the omission of a behavior required by the law.

How to charge an infringement of omission to a person, in the respect of the principle of personal liabilities? How to determine the person who does not have obeys the legal regulations?

This delinquent by omission will be, in all logic, that to which the regulation had enjoint to act: only that on which weighs an obligation to make can be seen reproaching for not having acted.

Some of the legal requirements act weigh, individually, on each citizen: infringement of nonassistance to anybody in danger, homicides and injuries through negligence…

Others have as a specific feature to be able to be made that within a collective framework: regulation of certain economic activities, paid work, spaces open to the public…

It is then to the leader of the interested community that addresses the legal injunction: S.A., mayor of commune chairchair, chair general advice, manager of company… It is to the leader to use his capacities in order to take care of the respect of the regulations in force, either while obeying the legal requirements, or while taking care of their respect by his subordinates.

In the event of disrespect of the regulation relating to the activity of these groupings, it is naturally the leading one, the decision maker who decided not to respect the law, or which did not make it respect, which will incur a penal sanction.

Certain texts aim the leader specifically: thus, the criminal responsibility to have let minors enter a cinema in violation of the age limit planned for film is incurred only by the leader in fact of the cinema. The infringement however is materially made by the cash clerk or the opener.

The responsibility for the leader be qualities, i.e. not for what it made or not as a natural person, but for what fell on to him as a leader, is accepted by the Court of criminal appeal of the Court of appeal since the middle of the XIXe century. She explained the principle of this responsibility “going up” for the employee who did not act with the leader who should have ordered to him to act, presenting it like an exception to the principle of personal liabilities in a stop of December 30th, 1892.

If the moral element of the infringement undoubtedly belongs to the principal, since the employee does not have autonomy, the perception of the material element is more problematic. If the leader had respected the law, it would have ordered to the employee to act or not to act in a certain manner; he would not have complied with the lawful regulations, he would have made them respect by a subordinate. When they were not respected, the leader seems not as material author of the infringement but a moral author, almost an accomplice. Being often infringements of omission, however, the distinction between the material author and that which had the simple infractionnelle will is thin.

This is why one can reproach the leader who was to respect and make respect the applicable regulation to have missed there. If the infringement is apparently made by a third subordinate, the decision maker is quite responsible not to have acted.

This responsibility for the decision maker does not violate the principle of the responsibility for the personal fact. It does not exonerate besides the employee of its own criminal responsibility if the whole of the elements of an infringement can be to him charged.

Moreover, the leader is in theory allowed to bring back the proof of his absence of fault, even if this proof is difficult to pay in practice: the leader is to consider to know the payments applicable to his activity, and one generally reproaches him for not having respected them nor made respect…

Example: the mayor is personally guilty of favoritism because it fixed the day order and chaired the meeting of the Municipal council which awarded the contract in violation of the legal regulations (Crim. November 19th, 2003).

When the leader in fact is not the leading one of right, the Court of appeal adopts a solution similar to that of the civil jurisdictions in similar circumstance: the leaders are joint authors of the infringement, each one can be continued as if he were the only leader (Crim. September 12th, 2000).

The receiver of a company, invests capacities of the leader, also assumes his responsibility are qualities.

It however appeared that in the important structures, the leader was not, in practice, in load of the whole of the activities. Worse, the leader cannot materially respect the whole of the obligations which weigh on him: the head of undertaking should permanently take care of the respect of the security instructions by the workmen, of the rules of accountancy and invoicing by the accounting department, of the respect of the law the labor by the personnel department of, of the rules of hygiene by the personnel of restoration and maintenance… It seems neither right nor convenient to charge an infringement to him when the decision-making powers belong to a third.

It is the mechanism of the delegation of powers:

The delegation of powers

The criminal responsibility of the leader is related to the capacities which it holds on the operation of the company: these are the capacities which make it possible to reproach him for not having acted or to have let commit an offense.

One could not dissociate this responsibility are qualities of the capacities of the decision maker. He results from it that the delegation of powers to a third defers on this third the criminal responsibility.

This logical solution was ratified by the Court of appeal at the beginning of the XXe century (Crim. June 28th, 1902).

The delegation of powers is a consensual act between the délégant leader and her employee délégataire; the writing is useful only as proof. One can consider subdelegations under the same conditions of validity and effectiveness that the initial delegation. On the other hand, all “Co-delegation” is excluded: the délégataire must enjoy an autonomy, of a capacity incompatible with the collective exercise of the delegation.

The validity and the effectiveness of the delegation of powers depend on several criteria, released by jurisprudence:

a.La delegation does not exonerate that responsibility are qualities: to in no case, a leader who personally took share with the consumption of the infringement cannot prevail himself of a delegation. The leader who takes share with the infringement personally is responsible for his personal fact, and as any material author of the infringement it can be punished. Only the responsibility incurred to have missed with the obligations falling specifically on its functions can profit from the delegation of powers. Example: Crim. September 17th, 2002, the aggressive sales strategies, constitutive of swindle, remain ascribable with the leader in spite of the delegation of powers because it conceived them and itself organized them.

b.La delegation of powers is made necessary by the structure of the company: only the leader who cannot assume his legal requirements indeed can delegate his responsibilities to a third. The mechanism of the delegation of powers is not a means for the leader of escaping his criminal responsibility but a mechanism aiming at ensuring the effectivity of the legal regulations. It is when the size or the material organization of a company does not make it possible to the leader to face his obligations which the powers delegation of is authorized, and even wished. In the same spirit, the delegation cannot be general but must relate to a precise branch of industry. This special character of the delegation is appreciated in a strict way by the judges.

Example: Crim. October 14th, 2003, the delegation of powers hygiene safety made with an administrative framework, CHSCT, transfer chair not the responsibility for non-consultation for the CHSCT: the offense of obstacle remains made by the officer of the company. The Court of appeal seems to distinguish the delegation hygiene “technical” safety, concretes, and a delegation as for legal” or “administrative” obligations the “related to the operation of the CHSCT.

c.Le délégataire is a member of the company provided with competence, authority and means necessary: the leader must indicate one of his subordinates, possibly the leader of a company girl in a group of companies, which with the technical skill, authority and average materials allowing him, in practice, to conclude the mission which is entrusted to him by delegation.

These conditions are intended to avoid any fictitious delegation. So that the employee assumes the criminal responsibility attached to certain responsibilities, still it is necessary that the leader puts it in position to ensure the effective respect of the law. The leader who would proceed to a legal delegation without transmitting his capacities indeed would penally remain thus responsible are qualities.

The appreciation of the existence and the regularity of a delegation of powers concerns the sovereign capacity of appreciation of the courts dealing with the substance of a case, who often show themselves rather severe against the leader, defying fictitious delegations: Crim. September 10th, 2002, p. e.g., as regards asbestos, which considers irregular the general delegation of monitoring and organization of safety on the building sites.

The effect of this responsibility be qualities associated with the mechanism with the delegation of powers is to put at the load them leader a true duty to delegate their responsibilities since they cannot assume them themselves, which ensures a maximum effectivity the regulation of their activity.

The moral persons subject of the criminal responsibility

Since the the Seventies - 80, the setting causes of it increasingly frequent criminal responsibility of the leaders and decision makers could have the appearance of an injustice, insofar as they are condemned personally for faults made in the performance of their duties, generally in the interest of the grouping which they direct.

The example of the President of Air France, condemned for an accident which has occurred in Ecuador, decided the commission of reform of the Penal code to introduce into its project the possibility of a criminal responsibility of the moral persons (" RPPM") : article 121-2 of the Penal code:

“The moral persons, other than the State, are responsible penally, according to the distinctions of articles 121-4 to 121-7 and in the cases provided for by the law or the regulation, of the made infringements, for their account, by their bodies or representatives. ”

This responsibility for the moral person is not to in no case a legal cause of exemption for the leader or any other author of the infringement: article 121-2, subparagraph 3, indicate: “The criminal responsibility of the moral persons does not exclude that from the natural persons authors or accessory to the same facts. ”

The impunity of the leaders will result, if necessary, of the choice of the public ministry in terms of appropriatenesses of the continuations.

The field of the RPPM

Ration personae

The punishable moral persons are, as article 121-2 indicates it, subparagraph 1, all the moral persons other than the State.

The concept even of criminal responsibility of the State is indeed absurd: in front of which the State would answer it of its faults? How could it punish itself?

Article 121-2, subparagraph 2, provide that the territorial collectivities and their groupings are responsible penally only for the infringements made in the exercise for activities likely to be the subject of conventions of public service delegation.

The RPPM supposes the existence of the legal entity: an infringement made before the registration, for example, cannot be charged to the moral person in theory, except employing other qualifications such as the concealment, or seeing in the act of recovery a reiteration of the infringement. The groupings in fact and the joint ventures do not incur any criminal responsibility. The criminal law refers to the rules of the civil law, of the commercial law or of the international law deprived to determine which groupings are equipped with the legal entity.

The concept of activity likely to be the subject of a convention of public service delegation was defined by the Court of appeal like: “the activity having for object the management of a public service and being able to be entrusted to a public or deprived délégataire remunerated for a substantial share according to the turnover” (Crim. April 3rd, 2002, in connection with the exploitation of a theater, being able to be the subject of a delegation within the meaning of article 121-2 subparagraph 2).

More recently, the Court of appeal could judge that the organization of school transport was not a likely activity of delegation, contrary with the exploitation of the service of transport: Crim. April 6th, 2004.

In practice, the territorial collectivities are not responsible in the exercise for the prerogatives of public power.

Ration materiae

Article 121-2, in its drafting coming into effect on March 1st, 1994, provides that the criminal responsibility of the moral persons can be required only “in the cases provided for by the law or the regulation”: it is the principle of speciality. The RPPM applies only for the incriminations envisaging it expressly, including the involuntary infringements.

Curiosity: in a stop of February 5th, 2003, the Court of appeal had considered that article 399 of the Code of the customs was applicable to the moral persons, whereas no text envisages it expressly. This text aimed “any person”, but one cannot consider that this expression aims at the moral persons, because it would be contrary in article 121-2 of the Penal code. This jurisprudence is probably confined with the customs right.

The law known as “Perben”, of March 9th, 2004, modified the field of application of the RPPM, which will be able to apply to all the infringements made starting from December 31st, 2005. The RPPM can apply, as envisages it article 121-2, subparagraph 1, with the consumption of an infringement as to its attempt or its complicity:

The moral persons, other than the State, are responsible penally, according to the distinctions of articles 121-4 to 121-7 and in the cases provided for by the law or the regulation, of the made infringements, for their account, by their bodies or représentants.

However, the territorial collectivities and their groupings are responsible penally only infringements made in the exercise for activities likely to be the subject of conventions of delegation of service public.

The criminal responsibility of the moral persons does not exclude that from the natural persons authors or accessory to the same facts, subject to the provisions of the fourth subparagraph of article 121-3. | Penal code French |article 121-2

The implementation of the RPPM

To engage the responsibility for the moral person, the infringement must be made on behalf of the moral person by her body or its representative.

It is the mechanism of the responsibility by rebound.

The moral person is not regarded in criminal law as an autonomous person, equipped with her own and her own means decision-making power of action, but abstract person incarnated by her bodies or representatives.

The RPPM is a mechanism of charge to the moral person of an infringement made by one or more natural persons: the body or the representative, i.e. any person having the legal, statutory or conventional capacity to engage the moral person, and in particular the délégataire of a body having of competence, the authority and the means necessary to the exercise of its mission.

The infringement made by a foreign person with the moral person, or at the time of foreign acts with the capacities of representation, or the infringement which is not made on behalf of the moral person (i.e. in its interest or on its behalf), cannot be charged to the latter.

The charge of an infringement to a moral person supposes the meeting of all the elements of the infringement, generally on the head of an identified natural person, body or representative of the moral person. The judges cannot in no case to establish the existence of the elements of the infringement directly in the chief of the moral person (Crim. April 29th, 2003).

The identification of the natural person is not absolutely necessary since the body or the faulty representative is identified: the only legal requirement is due to the existence of an infringement materially made by a body or representative.

If the body having made the infringement is a collective body, it does not seem that there is impossibility to continue the moral person, in condition however that the nature of the infringement lends itself to it, in particular with regard to the intention.

As for complicity, the effective judgment of the material author imports little: it is the existence of a punishable principal infringement which is only taking into account. The absence of continuations against the body or the representative does not prevent the judgment of the moral person. It may be even that the release of the representative does not prevent the judgment of the moral person: it is the case of the involuntary fault having a causal link indirect with the damage; the application of subparagraph 4 of article 121-3 of the Penal code does not prevent the judgment of the penal person (example: Crim. October 24th, 2000).

A cause of irresponsibility profiting with the body or the representative prevents in theory the continuation of the moral person, even, seems it, when it is about a subjective cause of irresponsibility, causes personal with the representative such as the insanity, although the solution is not certain in substantive law.

Indeed, the moral person constitutes an autonomous entity equipped with a legal personality different from that of the members who compose it. As nothing makes it possible, in theory, to apply to a person a subjective cause of irresponsibility (clean with a third), it does not seem convenient to contravene this mechanism on the assumption of a moral person, except breaking the equality of justiciable in front of the criminal law.

The disappearance of the moral person puts naturally fine at the continuations, and this same in the event of disappearance by merger by amalgamation. The principle of responsibility for the personal fact is opposed so that the absorbing person is responsible for the made infringements on behalf of the surviving company (Crim. October 14th, 2003).

Causes of penal irresponsibility

Doctrines as jurisprudence make a distinction which does not appear in the Penal code between the objective causes of irresponsibility, or made justificaifs, and subjective causes of irresponsibility, or causes of nonimputability.

Objective causes of irresponsibility

The objective causes of penal irresponsibility, called so made justifying, make disappear the punishable character from the act. The impunity of the principal author extends consequently to the accomplice as with the moral person.

These justifying facts are three: the authorization of the law or the order of the legitimate authority (article 122-4 of the Penal code), it self-defense (articles 122-5 and 122-6 of the Penal code) and the state of necessity (article 122-7 of the Penal code).

Authorization of the law and order of the legitimate authority

The authorization of the law or the payment reveals a contrariety between a penal text and another text, whether it is of civil nature, administrative or penal. The authorization of the payment can justify only one lawful infringment, and not the violation of a criminal law, as well because of the hierarchy of the standards as because of separation of the executive powers, legislative and legal.

The liberal principle wants naturally that, prohibition being always the exception compared to freedom, the authorization of the law overrides the prohibition enacted by another of the same text value.

The most current applications of this justifying fact relate to the use of the force with the police force and the gendarmerie, the medical acts which escape the qualification from violence if they are the fact of doctors and have a therapeutic reason, as well as article 73 from the CP which makes it possible any citizen to stop the author of a crime or obvious offense and to retain it the time necessary on arrival of the police force.

January 5th, 2000, the Court of appeal indicated that the justifying fact of authorization of the law extends to the involuntary infringements made during the execution from an act authorized by the law (awkwardness of a gendarme having resulted in the death of the continued person), to condition of course that the criteria of application of the authorization of the law are joined together (the use of its weapon by the gendarme was absolutely necessary): Crim. February 18th, 2003.

This decision confirms that the authorization of the law is not a subjective cause of irresponsibility; it does not make disappear the moral element from the infringement, without what imprudence would remain punishable.

The authorization of the law can cover only the facts strictly authorized by the law. Thus, the duty of cohabitation which forces the husbands to maintain the sexual relationships does not authorize one of them to impose such relations on the other; the right to stop it and retain the author of an obvious offense does not allow a molester, to excavate it or question in waiting of the arrival of the police force. An opinion of the administration, or the authorization to carry on an activity, could not justify a violation of the criminal law either: the administrative authorities do not have obviously the capacity to make escape a behavior the field criminal law.

It was judged by the Court of appeal that the duty of help to anybody in danger of article 223-6 of the Penal code did not justify the harbouring a wrongdoer made by a nurse since the abundant services with the criminal went beyond what the danger required strictly to which the criminal was exposed (Crim. September 17th, 2003).

For the authorization of the law, it is advisable to associate the habit which allows light attacks the human person without their author being able to be worried: thus, right of correction of the parents on their child, practice of sports violent one or the possibility of carrying out piercing and or tattooings without being continued for deliberate violences.

The habit is however not in theory a source of the criminal law, and these solutions remain exceptions without legal legitimacy other that the constitutional principle of need which prohibits the useless application of the criminal law.

The order of the legitimate authority makes it possible to ensure the respect of the orders given by the public authorities without those to which they are addressed in blaming legality.

It is for example the assumption of the presence of an agent controlling circulation in contradiction with indication in place; it is still the case of the workmen of the fourrière who remove the vehicles on order of the police force.

The person who obeys an order of the public authority is not responsible for the infringements which it makes within this framework except if this act is obviously illegal: article 122-4, subparagraph 2, show the theory known as of the “intelligent bayonets”, the fact of obeying an order should not remove any understanding.

It is this theory which allowed the judgment of Maurice X. (Crim. January 23rd, 1997) with the reason that “the illegality of an order of the authority legitimates as regards crime against humanity being always manifest”.

This theory also makes it possible to exclude from article 122-4 the orders given by obviously inefficient authorities, i.e. apart from their field of competence.

The concept of authority legitimate was specified by the Court of appeal, which indicated that this term aims at the invested people of a capacity of command in the name of the public power: organizes, gendarmerie… An employee who obeyed the illegal orders of his employer cannot in no case to prevail himself of article 122-4 of the Penal code (Crim. June 26th, 2002). At most will be able it to base its defense on a psychological constraint, which has little chance to thrive, or a state of necessity to preserve its employment, of which the proof will be extremely delicate.

In addition to the authorization of the law or legitimate authority, one could wonder about the incidence of the assent of the victim on the existence or the punishable character of the infringement.

No text envisages the assent of the victim as causes irresponsibility. By addition, the criminal law protects firstly the general interest, the company as a whole; it seems natural that its implementation does not depend on the decision of a private individual, was it the victim.

This indifference of the assent of the victim finds its limit in certain infringements which protect from the interests to the individual character more marked. The principle of the unavailability of the prohibited human body of causing production of effect with the assent as regards murder or violences. On the other hand, of the infringements the absence of assent like one their components envisage: flight, rape, swindle… On these assumptions, the assent makes disappear the material element from the infringement.

The self-defense

The self-defense is envisaged in article 122-5 of the Penal code. This justifying fact profits with the person who, vis-a-vis an unjust and current attack against a person or a good, accomplished an act necessary, simultaneous and proportioned to the defense of this person or this good.

It is specified with subparagraph 2 that when the attack aims at the goods, the response must be strictly necessary, a voluntary manslaughter being excluded in any event from penal immunity.

The elements of the self-defense are the following:

an unjust attack against oneself, others or a good. The unjust character of the attack excludes in particular legitimate violence such as that from a police officer who tries to protect the law and order, or from the behaviors such as the IVG or the transgenic detention of corn when they are licit.

a current attack, i.e. a concomitant response with the attack. It is impossible to be prevailed of the self-defense to cover a revenge, for example on the assumption that the victim draws on its attacker which escaped. On the other hand, the defense prepared in advance (poses traps, encloses electrified…) is valid insofar as it is carried out only when the aggression is current.

a response necessary, i.e., to counter the attack, the commission of an illicit act is obligatory; there is no licit alternative to the response.

a response proportioned with the attack: the sacrificed value must be less than the protected value; the response must generate social costs less than the achievement of the attack.

Jurisprudence could bring some precise details as for the conditions of implementation of the self-defense.

The current and unjust character of the attack does not pose any serious problem of application. Let us specify simply that when the attack is the fact of a public authority, its unjust character could be recognized in the event of manifest illegality (beating up, seized by night).

The character necessary and proportioned response as for him is subjected to the appreciation of, and the function courts dealing with the substance of a case of the whole of the circumstances in fact. The bringing together of two stops of the Court of appeal of the December 6th, 1995 and February 21st, 1996 reveals thus that the victim seized with the collar of its clothing by an attacker was condemned to have counteracted blows of stiletto heels but was seen recognizing to it self-defense for the shooting of a ball in full heart.

In many businesses being held of night, one could note that the appreciation of the character necessary and proportioned response depends by no means on the reality of the aggression but of its gravity as perceived by the author of the response.

Rather than to really wonder about the balance of the involved interests, the penal judge wonders whether a reasonable person, placed in the same situation, would have reacted in the same way.

This subjective approach, which can lead to the admission of a purely putative self-defense, in reaction to an imaginary aggression, explains the refusal to justify by the self-defense the involuntary infringements. A careful man controls his acts and reacted in a way proportioned to the aggression of which it is victim; he does not make an act of imprudence or negligence involving of the wounds or the death of his attacker. This approach also justifies that one refuses the benefit of the self-defense to that which is not known in situation of defense: for example the person who joint with a brawl for the pleasure of the combat and which joined by chance the group of the victims in a state of self-defense. The self-defense would thus come to protect that which, although making an illicit act, does not make a fault or reveals its absence of social dangerosity.

This subjective approach does not correspond to the traditional nature of the self-defense, justifying fact and not causes subjective irresponsibility. The admission of an objective cause of irresponsibility should correspond to objective criteria; it is what makes it possible to extend this cause of irresponsibility to the accomplices. Let us imagine indeed that a third has a better knowledge of the situation than the victim of the aggression; that this victim, feeling by error attacked, requires a weapon of him to defend itself. Could the third which would provide this weapon be condemned for complicity? It knew that there really did not exist of aggression, its release seems unjust; however, if the principal author profits from the self-defense, the character infractionnel of its act disappears and the accomplice cannot be condemned!

One observes here an inconsistency of the criminal law which leads to unjust and illogical solutions. Jurisprudence should either reconsider the exclusion of the involuntary infringements, or to treat to it self-defense as a subjective cause of irresponsibility and to condemn, if necessary, the accomplice or the moral person.

There exists in article 122-6 of the presumptions of self-defense in favor of the victim of a night intrusion, by effraction violence or trick, in an inhabited place or its direct dependences such as a garden or a terrace; or in favor of the victim of flights or plunderings carried out with violence.

Jurisprudence on the occasion to specify that these presumptions were only simple presumptions (what is normal out of penal matter): the person who can not be not victim of an aggression cannot prevail herself of the self-defense, and the fact of being in one of the cases aimed by article 122-6 does not make it possible to proceed to disproportionate acts or not necessary. Example: Crim. October 12th, 1993: the father who shoots at the applicant from his daughter in all full knowledge of the facts, whereas this one was introduced by trick into his residence to return visit to his daughter, cannot prevail itself of the presumption of self-defense, the attack of which it is victim not being able to justify the adopted reaction.

The state of necessity

The authorization of the law, the order of the legitimate authority like the self-defense let show through a conflict between two values protected by the company; these mechanisms lead in theory to the sacrifice of the less value and the safeguard of the higher value.

It appeared in practice that in certain situations, the good sense as the general interest ordered the sacrifice of certain interests without the legal justifying facts finding to apply.

Magnaud judge, chairing the Magistrates' court of Thiéry Castle, entered the legal history while giving a judgment on March 4th, 1898 per which he refuses to condemn for bread flight an young girl without employment and money having his mother and a two year old child to load, not having eaten for 36 hours at the time of the vol. the Court of Appeal of Amiens has confirmed this judgment by considering that the proof of the guilty intention is not reported.

This decision marks the first draft of the state of necessity in substantive law. Indeed, the reason retained by the judges in this business does not have legal relevance: they confuse the intention and the mobile.

Jurisprudence will refine during the XXe century the criteria of the state of necessity, which will be finally legalized in article 122-7 at the time of the reform of the Penal code of 1994.

The state of necessity covers the reaction necessary and proportioned to the current or imminent dangers.

Contrary to the self-defense, the state of necessity relates to situations of objective danger, not obligatorily related to an unjust aggression.

Contrary to the constraint, the person who is in state of necessity does not lose her will; it is with complete freedom that the agent made the choice sacrifice a less value (ex: the property of the bread) for the safeguard of a higher value (ex: the health of the child).

The state of necessity is retained in a restrictive way by the Court of appeal and the majority of the courts dealing with the substance of a case. Thus, the mother who flies of the meat “to improve the ordinary one” of her children cannot prevail herself of the state of necessity; and this of as much less than it remained to him a few thousands of francs of economies at the bank (Poitiers, April 11th, 1997).

The state of necessity was also refused with the commandos anti-abortion: the offense of obstacle with IVG cannot be justified by the need for saving the life of the child to be born insofar as the IVG is authorized by the law (Crim. January 31st, 1996). The destruction of GMO was also excluded from the field of the state of necessity (Crim., February 18th, 2004).

The courts dealing with the substance of a case use the mechanism of the state of necessity to found decisions of equity, such as the release of a “squattor” of unoccupied housing which settles with its family (TGI Paris, November 28th, 2000) or the culture of cannabis to relieve the pains of a paraplegic person (PAPEETE, June 27th, 2002). These decisions are generally not satisfactory in right, fault for the judges of proceeding to a true research of the character necessary of the infringement (other possible residences, lodging in friends, of the family; other so effective drugs…)

The state of necessity cannot be called upon by the agent which is, by its fault, placed in the situation of danger. This rule, which showed through already in the motivation of the judgment of Castle-Thiéry, was affirmed by jurisprudence in particular in the case of a truck being engaged on a level crossing whereas the passage was already prohibited there, and which has to break a barrier to avoid the collision with the train.

The state of necessity, true justifying fact, covers even the involuntary infringements: Crim. July 16th, 1986 which release a gendarme who, in the need for intimidating an individual, drew a blow on the ground which wounded it by rebound.

The decisive criterion of the implementation of the state of necessity will be the balance between the protected interest and the sacrificed interest.

It is in the sense that new jurisprudence (Crim. May 11th, 2004) on impossibility of continuing for flight an employee who seized documents strictly necessary to the defense of his interests in front of the conciliation board jurisdiction could be attached to the state of necessity. It could be also that conscious of its acts is private of any will and thus forced to make an act which it does not want:

The constraint

The constraint is the penal equivalent of the major force. It is about an irresistible force. As in civil law, there exists a debate as for the condition of unpredictability: is this a condition of implementation of the concept or is this a corollary of irresistibility, the foreseeable events being by nature resistible? The court of criminal appeal seems to require constraint that it is unforeseeable and irresistible. The text however refers only to irresistibility.

The constraint can be physical or moral; the important criterion is its irresistible character and its causal link with the infringement. The constraint is a cause of nonimputability: it must have abolished the understanding of the victim to be taken into account.

It could in particular be a question of a natural cataclysm or a disease of the agent: the faintness unexpected of the motorist, related to a disease which he was unaware of, exonerates it from any criminal responsibility as for the consequences of the accident which he will have caused.

The traditional example of the moral constraint is that which results from pressures or blackmail having abolished the understanding of the victim. It could be judged by the Court of appeal that the pressures pled of the German authorities of occupation on the person of Maurice X had not abolished its free will and that there thus remained responsible for complicity of crime against humanity (Crim. January 23rd, 1997).

The constraint will not be taken into account if it results from a fault or an imprudence of the agent.

Thus, the person who knows herself prone to faintnesses but which would lead all the same, or that which calms down whereas it took the road in a advanced state of tiredness, are responsible for homicide or involuntary injuries in the event of accident.

A stop very old, known as of the “sailor deserter” (Crim. January 21st, 1921) retained the criminal responsibility of the sailor who, stopped and placed in cell of sobering up for intoxication, missed the departure of his ship. It was prevailed of the major force, i.e. constraint, but the judges considered that its arrest having been determined by its intoxication volunteers, this one was not unforeseeable nor invincible.

This jurisprudence is criticizable, because the offense of desertion is intentional, and cannot be made by a simple imprudence as in the species.

The error of right

" Nemo censetur ignorare iudicium", “No one is not supposed to be unaware of the law”: the proverb poses a legal fiction (and not a presumption, simple rule of proof) necessary to the operation of any legal system.

Indeed, the right rests on its obligatory character and one cannot consider a legal system in which the individuals could prevail themselves of their ignorance of the right to escape its application.

At the time of the reform of the Penal code, the legislator had the ambition, to satisfy the requirements of clearness and accessibility of the right, to gather the infringements “except code” in the fifth book of the Penal code. It appeared that it was impossible to count the entirety of the infringements existing in French right, but which one could evaluate the number with approximately 10.000.

This impossibility of knowing exact contours of the criminal law led the legislator to attenuate the fiction of knowledge of the right by the introduction of the error of right as causes irresponsibility.

Article 122-3 of the Penal code lays down the irresponsibility of the person who justifies to have believed, by an error on the right which it was not able to avoid, legitimately to be able to achieve the act.

It is not a question to prove its ignorance of the criminal law, but its belief in the legality of the accomplished act.

The Court of appeal applied this cause of irresponsibility in a very restrictive way, specifying for example that the error on the range of a legal decision, caused by the legal council of the interested party, is not invincible, the judge who can be seized of a request in interpretation (Crim. October 11th, 1995). She also considered that the company which had increased its hypermarket after a ministerial opinion had indicated to him that she did not need authorization did not make an invincible error, because she could have consulted qualified lawyers (Crim. March 19th, 1997). She posed later for principle that a simple opinion of a professional of the right cannot constitute an error of right (Crim. January 7th, 2004).

She on the other hand accepted the irresponsibility of the head of undertaking which had done nothing but apply one collective agreement signed under the aegis of a mediator designated by the Government (Crim. November 24th, 1998).

This cause of irresponsibility is used more largely by the courts dealing with the substance of a case, in general censured by the Court of appeal, in a preoccupation with an equity. For example, the Court of Appeal of Paris considered that the discordance of jurisprudences of the rooms social and criminal of the Court of appeal as for the legality of the documents photocopied by the employees for being produced in justice had led the employee to an error of right preventing its judgment for flight (CA Paris, November 9th, 2000, Crim.11 May 2004).

In addition to these three subjective causes of irresponsibility, there exist immunities holding with a personal quality of the delinquent, such as for example, pursuant to article 311-12 of the Penal code, the immunity of the spouse, ascending and going down as regards vol. These immunities are personal causes of irresponsibility which do not profit with the accomplice where with the moral person; they are not very of times not comparable to a defect of moral element. In that, they approach the objective causes of irresponsibility.

The criminal responsibility of the French policies

President of the Republic

See also: Penal statute of the President of the Republic

Article 68 of the Constitution lays out that “the President is responsible for the acts made in the performance of its duties only in the event of high treason. It can be put in charge that by the two assemblies ruling by a vote identical to the open vote and absolute of the members who compose it. He is judged by the High Court of justice” .

At the request of Jacques Chirac who had engaged there before the elections, a “commission of reflection” instituted in July 2002 and chaired by Pierre April proposed in his report/ratio of December 12th, 2002 to distinguish political responsibility and criminal responsibility, and its conclusions were taken again by a reform project of the Constitution filed in front of the Parliament into 7.2003. During his mandate, the President of the Republic (PR) could be continued penally only in front of the International penal court in the event of genocide or of crime against humanity. He could however be politically continued “in the event of failure with his duties, obviously incompatible with the exercise of his mandate” and relieved by a High court , composed of the whole of the members of the Parliament and which, seized by a concordant vote of the two assemblies, would rule on the incompatibility of the facts complained of with the continuation of the mandate. If this one ends, of the criminal prosecutions could then intervene.

Ministers

Members of Parliament

In France, the Members of Parliament have of an immunity and an inviolability.

Town councilors

The town councilors had into 1974 of a privilege jurisdiction, with the image in particular of the prefects and magistrates. Instituted following the business of the fire of the dance hall the 5/7 and the judgment of the mayor of St Laurent of the Bridge, which had had a strong impact on the political community, this privilege made it possible to inform the crimes and offenses of the elected officials in another district that theirs (in order to avoid any partiality on behalf of the judge) and was abolished at the time of the reform of the Penal code in 1993.

The installation of decentralization resulted in increasing appreciably in a score of years the corpus of standards (more than 5000 texts divided into 18 Codes) to which was in particular to subject the elected officials, who always did not lay out, in the small communes, of the expertise necessary to apply them. The fields of the town planning and the safety of construction, the environment or the public procedures of market constitute as many " thus; niches with délits". Moreover, the legislator created nonintentional offenses , which constitutes an exemption from the principle which wants that “it does not have there a crime or of offense without intention to make it” (Article 121-3 of the CP). Lastly, in a context of economic crisis and competition between the communes to attract the companies, certain mayors were brought to carry out perilous legal assemblies.

The mayors could feel " scapegoats of the democracy of proximité" , according to the expression of the senator Hubert Haenel and constrained being to limit the initiatives. The legislation thus tried to better frame the phenomenon, in particular by the law Fauchon of July 10th, 2000 on the nonintentional offenses.

Examples of settings causes the criminal responsibility of the town councilors of it

1970 : set fire to dance hall the 5/7 at St Laurent of the Bridge
1991: fall of a gantry of tennis shoe to St Denis
1991: set fire to thermal baths of Barbotan
1992: floods of Vaison the Romans
1995: drownings of the rivers of Drac

See too

References

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