Public Finance Management is
Introduction:
principle of separation of officers is to secure the circuit of expenditure (Article 20 of Decree of 29 December 1962 laying down general rules of public accounting): "The officer and those of public accounting are incompatible. "
Goal: prevent the illegal taking of interest and embezzlement.
Consequence: officer (= person who commits revenue or expenditure) can not handle public funds without authorization, otherwise interference functions of the accounting office => management of affairs.
Others may be guilty of de facto management, not just officers. Is complicit in the officer (companies, associations), or a person who is interfering in public revenue collection.
I) The conduct constituting de facto management [1]
A) In terms of revenue
1) Interference in revenue collection
first hypothesis: Interference in revenue collection
Terms: taxes, fees and State-owned products.
Example: collect without legal title to the revenue of a municipal theater
ECA Institute May 15, 1997 France: an association that receives compensation for use of premises of a public institution
ECA April 7, 1998, Common Gourbeyre: a mayor who receives voluntary contributions purportedly for a building permit
Exception by Authorities revenue officer may raise revenues but under control of the accounting office
2) Deniers regulated private
second hypothesis of the art 60-XI of the Finance Act 1963: money and values of others (= money regulated private).
Fund and values of private persons under the supervision public accountant.
Example: public security offices to public housing, money and valuables inpatient
B) In terms of expenditure: illegal extraction of public funds
Exception imprest for spending under control of a public accountant.
1) Theory of office fictitious
third hypothesis of the art 60-XI of the Finance Act of 1963
Mandate dummy = regular term but apparently based on false => the amount of expenditure can not refuse.
Mandate for another service as mentioned [2] .
Court September 27, 1989 Accounts Service information and dissemination of the Prime Minister: Study billing works very brief and subsequent compensation.
2) Theory of transparency
Creating association to evade the rules of public accounting. Authorizing pay subsidies but has control over the use of funds. The judge proceeded accounts beam index to verify that the association is independent: the existence of an agreement, council members not in the majority, the expenditure for the purpose of the association.
ECA, 4 August 1944 Lamirand:
Secretary General for Youth provides grants to two organizations to which he gave instructions for the use of funds => Accounts judge considered that it was a slush fund, used for expenses attributable to secretariat. Mayor
control expenses even if formally independent association [3] .
II) Procedure and penalties for management is
A) The proceedings before the court of Auditors
1) Conduct
either ECA or Regional Chamber Accounts
Written procedure. Double block: provisional and final. Public hearing.
Act of 2001 on the CRC and the Court of Auditors [4] : magistrate no longer participates in the deliberations
Limitation period 10 years
2) guarantees the defendant
EC 23 February 2000 Metal Labor: no discuss the management report done in public before judicial
EC Razel April 6, 2001 Company: Magistrate of management control should not participate in the trial
EC Perrin November 16, 1998: repressive nature within the meaning of art. 6 § 1 of the CEDHSLF
B) Sanctions if management is
1) The sanctions from the court of Auditors
The accounting is made subject to the same accounting rules as clear and even more serious because no relief or cancellation by the Minister of Finance. Fine
Getting
debit of Duty to repay amounts missing
Loss of quality of authorizing expenses for the elected, the coup is the deputy or vice-president who directs the expenditure.
2) Any additional sanctions from the criminal courts
The Criminal Code provides for penalties similar => no cumulation of fine for theft of overlapping function but for the rest (art L121-11 Code of financial jurisdictions).
L433-12 CP: usurpation of function (3 years in prison and 45,000 euros fine).
management is not a criminal statute but may be accompanied by crime (art 60-XI of the Finance Act of 23 February 1963).
L441-1 CP: forgery and forgery (3 years in prison and 45,000 euros fine).
L432 CP-12: illegal taking of interest (5 years in prison and 75,000 euros fine).
L432-14 CP: Crime of patronage for public procurement (2 years in prison and 30 000 euro fine).
Conclusion: The burden of
old sanctions that accompanied ineligibility aroused led to shifts. The de facto management can result from handling without legal title but in good faith. Very few cases of management has been doing so it seems that we reached a good balance between fundamental principle of separation of officers and accountants and not excessive penalties. But his philosophy is ambivalent between logic and control logic of punishment.
[1] Art. 60-XI of the Finance Act of 23 February 1963
[2] Court of Auditors, January 15, 1875 Prefect of Eure Eugene de la Motte January
[3] Court of Auditors, December 9, 1993, Festival Committee
[4] Law No. ° 2001-1248 of 21 December 2001 on the CRC and the Court of
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