Facts
The case concerns a sole administrator of a public limited company with a single shareholder, who was accused of disloyal management for disposing of assets belonging to the company for personal purposes. The company in question, E. AG, had a share capital of 500'000 Swiss francs and was managed by the sole administrator, who was also the sole shareholder. The facts took place between June 1983 and June 1984.
The accusations brought against the sole administrator included the disposal of the company's assets for his own benefit, such as personal expenses, rent for his residence, food for his daughter, leasing fees for a luxury car, as well as expenses for leisure activities. He was also accused of using the company's resources to finance personal projects without any consideration for the company.
The cantonal court initially convicted the sole administrator for disloyal management, but the court of appeal overturned this judgment, considering that the sole administrator had not acted disloyally since he was also the sole shareholder and the company was therefore his own property.
Considerations
General considerations
The Federal Court examined the question of whether a sole administrator of a public limited company with a single shareholder can be considered to have acted disloyally to the detriment of the company when disposing of assets belonging to the company for personal purposes. The Court considered that the public limited company is a legal entity distinct from its shareholders, even if there is only one, and that its assets are therefore considered as assets of others for the sole administrator.
Application of article 159 SCC
The Court applied article 159 of the Swiss Criminal Code, which sanctions disloyal management, and considered that the sole administrator had acted disloyally by disposing of the company's assets for personal purposes without any consideration for…