CORPORATE OFFENSES

Corporate crimes are regulated in articles 290 to 297 of the Penal Code, which regulate a series of offenses that are characterized by affecting the interests of a company and its partners. What do we mean by society? According to art. 297 of the Penal Code, it is any cooperative, savings bank, mutual, financial or credit institution, foundation, mercantile company or any other entity of analogous nature that, for the fulfillment of its purposes, participates permanently in the market.

These are crimes that can only be prosecuted by means of a complaint by the victim or his legal representative, although if the victim is a minor or a disabled or helpless person, the Public Prosecutor’s Office can also file a complaint. However, this requirement of prior denunciation is not applicable to those crimes that affect general interests or several persons (art. 296 of the Penal Code).

When is there a corporate crime?

According to the Supreme Court, in STS No. 693/2019 of April 29, 2019, in order to appreciate this crime, the following circumstances must be present:

• That the accused is a de facto or de jure administrator of a company incorporated or in formation. Neither sole proprietors, nor auditors who sign the accounts, nor accountants can be directors.
• That the accounts have been falsified, that is to say, altered or modified in relation to what should be their correct content, thus concealing the true economic or legal situation of the entity.
• That such falsification of the accounts is suitable to cause economic damage to the company, to the partners or to a third party. Alterations that are irrelevant, as they do not affect the economic or legal situation of the entity, and are not suitable to cause damage, do not constitute a crime.
• That the accused has intervened in a relevant way in the formulation, preparation or configuration of the accounts.
• That the perpetrator acts with malice: it is sufficient that he knows that the document contains data that do not correspond to reality.

Imposition of abusive agreements

Article 291 of the Penal Code punishes those who, taking advantage of their majority position in the shareholders’ meeting or the administrative body of any company, impose abusive agreements, for their own or another’s profit, to the detriment of the other shareholders, without bringing benefits to the company. This crime is punishable with imprisonment from 6 months to 3 years or a fine of up to three times the profit obtained.

According to our Courts, in this crime we start from the adoption of a lawfully obtained agreement, but it is abusive. In addition, it is required to have a profit motive of one’s own or another’s (that of the partners constituting the majority) to the detriment of the minority, and provided that this does not bring benefits to the company. Therefore, the conduct is not criminal if it generates a benefit for the company, regardless of whether the minority is harmed. We are dealing with a crime of concrete danger, which does not require the existence of a real damage for its consummation, but it is enough with the adoption of the abusive agreement (STS no. 698/2019 of May 19).

Harmful resolutions adopted by a fictitious majority

Article 292 of the Criminal Code punishes those who impose or take advantage for themselves or for a third party, to the detriment of the company or any of its partners, of a harmful resolution adopted by a fictitious majority, obtained by abuse of a blank signature, by undue attribution of the right to vote to those who legally do not have it, by unlawful denial of the exercise of this right to those who have it recognized or by any other similar means. The penalty to be imposed in this case is imprisonment from 6 months to 3 years or a fine of three times the benefit obtained.

Infringement of shareholders’ participation rights

On the other hand, art. 293 punishes, with a fine of 6 to 12 months, the administrators of a company who, without legal cause, deny or prevent a shareholder from exercising the rights of information, participation in the management or control of the corporate activity or preferential subscription of shares.

According to the Supreme Court, not every refusal to provide information constitutes a crime, but it must involve an effective limitation of the status of partner. Furthermore, it must be a clear and categorical refusal, so that mere difficulties or delays do not constitute a crime. On the other hand, it is not required that the conduct of the administrators causes a financial loss, but it must be suitable to damage the assets of the affected partner (STS no. 477/2014 of June 10).

Obstruction of the Administration’s inspection or supervisory work.

Finally, the administrators of any company acting in markets subject to administrative supervision, who impede the actions of the inspecting or supervising persons or entities, are punished with a prison sentence of 6 months to 3 years or a fine of 12 to 24 months (art. 294 of the Penal Code).