The Supreme Court, in its most recent rulings, including STS No. 129/2018 of March 20, has clarified the difference between these offenses, given that both punish similar behavior. According to this recent jurisprudence, the distinguishing factor between the offense of misappropriation and that of breach of trust is that, in the offense of misappropriation, the perpetrator disposes of the assets permanently to the detriment of their owner, while the offense of breach of trust occurs when there is an abuse of the administered assets to the detriment of their owner, but without their permanent loss .
However, some Provincial Courts understand that the true difference between the two crimes lies in the powers the perpetrator holds over the assets in question. If the perpetrator has administrative powers over the assets, that is, if they have a certain degree of freedom to manage the assets, provided they do so for the benefit of the owner, they can only commit the crime of disloyal administration, and not misappropriation. Thus, the crime of misappropriation is only applicable when the perpetrator disposes of the assets by virtue of a title other than administration, for example, if the assets have been entrusted to them by virtue of a deposit, which imposes on them the obligation to return them (SAP Madrid, no. 462/2020, of October 5).
At Nieto Enríquez Criminal Lawyers , our criminal lawyers in Barcelona have extensive experience in defending cases related to disloyal administration and misappropriation , offering rigorous advice adapted to each situation.