The contribution of case law to the making of the offences of misappropriation of powers and unlawful appointment (1870-2024)

Abstract

Since the first texts of the codification, various types of usurpation (patrimonial and non-patrimonial) have been punished. Among the latter, those of functions and attributions stand out, which are sometimes confused. The former are committed by private individuals. The latter are committed by agents of the State who, exceeding the exercise of their powers, invade the sphere of power of other public subjects. Jurisprudence has not dealt with any particular form of them with particular care, despite the frequency with which cases of this type appear (especially those of administrative authorities who arrogate jurisdictional powers to themselves). From CP 1822 to 1995, the same letters have remained practically unchanged in the penal texts. This relative stability and their scarce presence in court practice (to which not all offences have always had access) explains, in part, the scarce jurisprudential and doctrinal contribution to the formation of these offences (which does not prevent recognising certain contributions). In short, contrary to what happens with other types of offences (such as sexual offences), case law has not contributed decisively to the development of the offences of usurpation of powers and illegal appointment.