## Facts

- A shareholder of SA Testut filed a criminal complaint with a civil-party claim, seeking damages both personally and in the corporation’s name under the shareholder derivative mechanism in Article 245 of the Law of July 24, 1966.
- Former corporate officers and related persons were prosecuted for offenses including abuse of corporate assets, forgery and use of forged documents, complicity, and concealment.
- In the trial court, SA Testut also intervened in the proceedings through its legal representative; the court ruled on both the corporate claim and the shareholder’s personal claim.
- On appeal, the Court of Appeal of Douai held the shareholder inadmissible to pursue the corporate claim because the corporation had acted and no corporate “failure to act” was shown; the shareholder’s personal claim remained admissible.
- The corporation did not appeal, and the appellate court treated the trial court’s dispositions concerning the corporation as final.
- The shareholder, as civil party, sought review of the inadmissibility ruling as to the corporate (derivative) claim.

## Issues

1. Whether a shareholder who initiates a derivative civil-party claim in criminal proceedings retains an independent right to act and to appeal in the corporation’s name after the corporation intervenes through its legal representative.
2. Whether the corporation’s failure to appeal renders the corporate aspects of the judgment final in a way that bars the shareholder from appealing in the corporation’s name.
3. Whether the appellate record sufficiently showed that the prosecution was heard at the appellate hearing.

## Decision

- The court rejected the procedural argument that the prosecution was not heard, because the judgment stated the prosecution was represented at argument and at pronouncement and that parties spoke in the statutory order.
- The court partially quashed the appellate decision insofar as it declared the shareholder inadmissible to exercise the corporate action for SA Testut.
- The court held that the shareholder’s right to bring the corporate action includes capacity to present claims for the corporation’s benefit and to pursue appeals in the corporation’s name.
- The corporation’s intervention through its legal representative could not, by itself, deprive the shareholder of that right.
- The matter was remanded for reconsideration of the derivative (corporate-name) claims; the remainder of the appellate judgment stood.

## Legal Principles

- A shareholder authorized to bring a derivative corporate action has a personal, autonomous procedural right to assert claims for the corporation’s benefit.
- That autonomous right includes the ability to file and pursue appellate remedies in the corporation’s name.
- The corporation’s later participation in the same proceedings does not, by itself, extinguish the shareholder’s derivative standing or appellate capacity.
- An appellate court errs by treating the corporation’s non-appeal as foreclosing an appeal pursued by the shareholder in the corporation’s name where the shareholder holds an independent right to appeal for the corporation.

## Conclusion

The court ruled that a shareholder pursuing a statutory derivative action retains an independent right to litigate and appeal in the corporation’s name, and that this right is not eliminated merely because the corporation later intervenes through its legal representative or declines to appeal.


Testut (Affaire Testut), No. 97-83.470 (Cass. crim. Dec. 12, 2000)