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Law And Mana > Session 8 > Flashcards

Session 8 Flashcards

1
Q

Resolve commercial disputes through

A

Amicable settlement

Judicial procedures

Arbitration

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2
Q

President/managing Director’s civil liability

A
  • for acts committed by employees
  • for its own acts
  • conflicts of interest and insolvency proceedings (financial difficulties of the company)
  • d’oublie liability
  • civil liability of legal managing misdirectors towards third parties
  • civil liability of legal managing directors toward the company and its shareholders

-

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3
Q

President/managing directors criminal liability

A
  • for offences committed by employees
  • for its own offences
  • double liability
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4
Q

The Board of Directors

A

Runs the company
Takes the decision

Represent the shareholders in the interest of the company

Defines the company’a strategic orientations and ensures their implementation

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5
Q

Board elected by

A

The shareholders

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6
Q

The board elects

A

A president

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7
Q

Managing body

A

Board of Directors

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8
Q

Supervisory body

A

Not always exist

Supervises
Control the management of the company by the management board

Doesn’t set up the strategy

Carry out verifications, vérifiés the MB’s reports and financial statement

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9
Q

Civil liability

For acts committed by employees

A

Supervisory bodies liability

Civil liability under general law

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10
Q

For its own acts (civil)

A

Managing Directors and its representatives liability

Séparable fault of their function

Civil liability of legal managing directors toward company and shareholders

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11
Q

If you have a company

A

Legal obligations

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12
Q

Civil liability of legal managing misdirectors toward third parties

A

Retained if they have committed a fault separable from their function and personally attributable to them

“Intentional serious and incompatible with the normal exercice of corporate functions”

Personal liability

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13
Q

To demonstrate the managing directors civil liability, should be established the existence of

A
  • a fault committed by the managing director
  • damage suffered by the plaintiff
  • a causal link betw such fault and such prejudice
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14
Q

Ex of civil liability of legal managing misdirectors toward Thor parties

A

A managing director who has deliberately misled a supplier or consumer

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15
Q

Civil liability Of legal managing directors towards the company and its shareholder

A

Any faults are committed by a legal managing director even if it cannot be separated from his function

Extremely difficult to prove

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16
Q

Shareholders group together to

A

Exist size the legal action in the name and on behalf of the company

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17
Q

Fault likely to engage the civil liability of the managing director

A
  • breach of law or regulation
  • breach of statutory provisions
  • mismanagement
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18
Q

Breach of statutory provision

A

Breach of the rules of procedure

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19
Q

Mismanagement

A

Gross negligence

behaviour deviates from that of the consciousness honest…

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20
Q

Judges consider as culpable

A

Any behaviour contrary to the corporate interest

Breach of the corporate interest

Lack of supervision

Negligence

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21
Q

Breach of the corporate interest

A

Contract in the same field of activity

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22
Q

Insolvency proceedings

A

Action for repayment of liabilities

Personal bankruptcy

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23
Q

Action for repayment of liabilities

A

Pénalise à mismanagement that occurred before the opening of an insolvency proceedings

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24
Q

Personal bankruptcy

A

Fraudulent bankruptcy

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25
Q

When bankruptcy

A

The debts are frozen

plan of repayement or liquidiation

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26
Q

Double liability

A
  • employees

- legal person

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27
Q

Criminal liability

A

For the offences committed on their account by their organs or representatives

Hante broken à duty of care of precaution in a deliberate manner

Misconducted

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28
Q

For its own offences

A
  • misuse of corporate assets or loans
  • abuse of power or voting rights
  • drawing of inaccurate accounts
  • distribution of sham dividients
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29
Q

Conditions to “misuse of corporate assets or loans” or “abuse of powers or voting rights”

A

Use contrary to the corporate interest
Use in a personal interest
To favour another company

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30
Q

Conditions to “drawing of inaccurate accounts “

A

Publication of the annual accounts to shareholders

Intention to hide the true situation of the company

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31
Q

Condition to “distribution of sham dividends “

A

Consciously

Fraudulent inventory

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32
Q

Penalty

A

Up to 5 year’s imprisonment

Fine of 375000 euros

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33
Q

Tax offences

A
  • tax fraud offence

- repeated non compliance with tax obligations

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34
Q

Conditions to “tax fraud offence”

A

Material facts tending to allow the taxpayer to avoid in whole or in part taxation and deliberately intend to commit fraud

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35
Q

Tax offence penalty

A

Up to 5 years imprisonmene t

Fine of 500 000 euros

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36
Q

Offences to consumer law

A
  • misleading advertising, unfair commercial practices
  • misleading fraud falsification
  • counterfeiting
  • cybercrime
  • offences related to the protection of personal data (data protection act)
37
Q

Conditions to “misleading advertising unfaire commercial practices “

A

Behaviour of a professiona likely to mislead the consumer about a product

38
Q

Conditions to “misleading fraud falsification”

A

Affection of the quality of a good, the suitability for use of the risk of its use

39
Q

Penalty “misleading advertising “ or “ fraud falsification” or “counterfeiting “

A

Up to 2 years imprisonent

Fine of 300 000 euros

40
Q

Conditions “counterfeiting”

A

If it is established that he has personally participated in this offence

41
Q

Conditions cybercrime

A

Committed by employees

Lack of supervision

42
Q

Penalty cybercrime

A

Up to 5 years imprisonmennt

Fine of 75000 euros

43
Q

Conditions offences related to the protection of personal data

A
  • failure to implement the security measures provided for by law
  • collection of personal data by fdraudlent unfair means
44
Q

Penalty protection of personal data

A
  • up to 5 years imprisonelent

- fine of 300 000 euros

45
Q

Conditions anti competitive practices

A

Devin organization implenentation

46
Q

Penalty anti competitive practices

A

Out to 4 years imprisonelent

Fine of 75000

47
Q

Conditions restrictive practices

A

Restrictions on:

  • the minimum price imposed
  • price reduction announcements
  • non compliance with rules in terms of invoicing
  • non compliance with payment deadlines
48
Q

Penalty restrictive practices

A

Fine of 75000 euros

49
Q

Conditions road safety offences

A

Managing director is liable for traffic offences committed by his employees

50
Q

Penalty road safety offences

A

Fine up to the amount of the contravention

51
Q

Means of exemption from criminal liability

A
  • delegation of authority
  • error of law : jurisprudential interpretation
  • employee not a legal representative of the company (own initiative)
52
Q

Division of liability

A

Betw the M.D. and his representative

53
Q

Respresmtatove shall take full measure of his rights and obligations

A
  • knowledge and compliance with the provisions relating to its function
  • knowledge of the applicable code of governance
  • knowledge of the company’s own rules
54
Q

Repaentaive

Duty of loyalty and integrity toward the company and shareholders

A
  • act in good faith
  • preservation of its indépendance or judgement
  • alert the board on elements contrary to the company’s interest
55
Q

Duty of repsentatove

A

Loyalty and integrity

Care

Corporate interest of the company

Confidentiality of other stakeholders

Confidentiality of debates and info

56
Q

Duty of care

A
  • devote the necessary time and attention to his duties

- regular attendance at board and committee meetings

57
Q

Corporate interest of the company

A

Shall consider himself as representing all shareholders

Take into account the expactions of other shareholders

58
Q

Management of conflicts of interest situation

A

Obligation of discolusure

59
Q

Insurance

A

Can cover liabilities but not criminal liabilities

60
Q

French law

Prosecution of companies

A

As an individual offender

61
Q

Sanctions under criminal law imposed on companies

A

5 times greater than the fines applicable to natural persons
(Cannot be imprisoned)

62
Q

Fines

A

Proportional with the offence committed

63
Q

Other sanctions

A 
Dissolution 
Forfeiture (confiscation)
Prohibition from exercising an activity 
Closure of the establishment 
Judicial supervision 
Prohibition form drawing cheques
64
Q

The French market authority

A

Can impose monetary sanctions, injunctions

—> administrative sanctions

65
Q

Criminal liability of legal entities in the FrenchLe al Code

A

Largely extended and applies to all the offences

66
Q

Companies are liable for

A

The acts or omissions of their employees

67
Q

Upper level managers

A

Legal capacity to represent their employer as this invoke the company’s penal responsibility

68
Q

Esprit criminel

A

Mens rea

69
Q

To prosecute a company

A

Not necessary to identify the individual natural offender

70
Q

Individual offender and the company

A

Can be convicted for the same offence

71
Q

Subsidiaries (filiale) and parent companies

A

Autonomous legal entities

72
Q

but the principle of judicial autnonmy will not apply

A

If the parent company has interfered with the subsidiary’s own affairs

73
Q

An offence is committed within a subsidiary

A

The subsidiary natural perpetrator of the offence

The parent can be conidered as an accomplice ; “organ” (penal code)

74
Q

Other types of sanctions imposed on a company

A

Civil damages claim from the victim
Administrative sanctions
Criminal penalties

75
Q

Under admistratice law

A

No men’s rea necessary to prove violation of an act

76
Q

The prosecutor

A

Has the right to commence investigation regarding a company without restriction / on his own will

No policies investigation necessary

77
Q

3 possible classifications for companies under investigations

A
  • a witness
  • a person of interest
  • the official suspect (substantial evidence needed)
78
Q

Managing director

A

Equivalent to chief executive in the USA

79
Q

MBA

A

Masters degree in Business Administration = highest degree in the domain of management

80
Q

Case Mr Robo

A

Responsible for misappropriation of corporate assets

Can be punished as stated by Article L227 of the Commercial Code

81
Q

Considering the fia c ai laitiation of the company

A

This loan is against the company’s interest

82
Q

Customary law

A

Traditional common rule or practice that has become intrinsic part of the accepted and excepted conduct in community

Legal requirement

83
Q

Legal order

A

Legal rules we cannot avoid

84
Q

Trade transactions

A
  • cash with order
  • cash on delivery
  • documentary credit
  • cash in advance
85
Q

CWO

A

The buyer pays cash when he places an order

86
Q

COD

A

The buyer pays cash when the goods are delivered

87
Q

Documentary credit (L/C)

A

Letter of credit is used

88
Q

Cash in advance

A

Prepayment

Law And Mana (8 decks)

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