Lhe legal texts hardly protect minors from embezzlement of money of which one of their parents could be guilty. On the one hand, a decree of December 22, 2008 (Annex I) states that the receipt of funds, in an account or in a savings book, and their withdrawal, are acts of“administration”without gravity, including if they allow them to be emptied.
Each parent is SO “reputed, with regard to third parties”like the banker, being able to accomplish them alone, unlike acts of ” arrangement “ (article 389-4 old And 382-1 new of the civil code). On the other hand, the article 499 of the civil code says that these third parties “are not guarantors of the use of capital”.
The Court of Cassation therefore censures the appeal courts which ordered banks to reimburse minors whose capital they had allowed a parent to siphon off (15-24.946, 87-15.899).
It is in this context that the following case takes place: in May 2012, Mr.me Y, divorced, are authorized, by a guardianship judge, to receive, for each of their three minor children, a sum of 7,000 euros, from an insurance company and intended to compensate for emotional damage linked to the death accidental from their uncle.
Mr. X opens three savings accounts at Crédit Mutuel, and deposits the funds there. But, thirteen days later, he transferred two thirds of it (15,000 euros) to the account of his company in difficulty, SG Auto Import. Soon he will withdraw the balance, leaving only a few cents.
Duty to alert
The judge, alerted by Mme Y, orders that the Departmental Union of Family Associations (UDAF), designated ad hoc administrator of the children, recover the embezzled sums from the father, who has however been insolvent since his business was liquidated, and from the bank.
The UDAF files a complaint against the father, and the public prosecutor files it under conditions: the person concerned, who only receives active solidarity income (RSA), will have to reimburse 15 euros per quarter to each of his children . The UDAF will have to restart it regularly for it to run; in seven years, a total sum of 1,815 euros (of the 21,000 embezzled) will be recovered.
The UDAF is suing the bank, maintaining that the disputed transfers were acts of disposition, which could not be executed without the mother’s consent. She wins her case, in the first place, but Crédit Mutuel appeals. He objects that these were administrative acts, not requiring this agreement, but specifies that their classification does not matter, because it “is not a guarantor of the use of capital”.
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