Misappropriation of Company Money: Criminal Defence

Misappropriation is one of the most frequent property offences in the business sphere. It occurs where someone lawfully receives a movable thing (money, documents, goods) and then keeps it, denies holding it, or puts it to a use other than the one agreed. As criminal lawyers experienced in misappropriation, we explain everything you need to know.

What Is Misappropriation?

Governed by Article 253 of the Criminal Code, misappropriation punishes anyone who, having lawfully received money, instruments, securities or any movable thing, incorporates them into their own assets or puts them to purposes other than those agreed. The penalty varies according to the amount:

• Amount over €400: 1 to 6 years in prison and a fine (less serious offence).
• Amount under €400: a fine of 1 to 3 months (minor offence).
• Aggravated: if it exceeds €50,000 or affects essential goods, the penalties rise significantly.

The Difference from Theft and Unfaithful Management

The key lies in the prior lawful possession:

• Theft: you take something you did NOT hold. You take money from the till without permission.
• Misappropriation: something is handed to you lawfully and you do NOT return it. You are given money to buy materials and you spend it.
• Unfaithful management: you manage the assets of another with administrative powers and carry out harmful acts. You are the company's director and you divert funds.

The Most Frequent Cases

The situations we see most often in the firm are:

1. An employee who withholds company funds: an accountant who diverts small amounts over months.
2. An agent who does not hand over money collected: a salesperson who collects from clients and does not pay it into the company.
3. A depositary who does not return: you are lent an item and you do not give it back.
4. An agent who exceeds the mandate: you are given authority to sell a property and you keep part of the price.

Defence Strategies

In our experience, the most effective lines of defence are:

• Denying the subjective element: proving there was no intention to keep the money (an accounting error, confusion of accounts).
• Lawful title: evidencing that there was a right to retain (set-off of debts, a right of retention).
• Reclassification: redirecting the offence to a less serious one (minor theft, a purely civil matter).
• Early restitution: returning what was misappropriated before trial to obtain the mitigating factor of making good the harm.