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Introduction

The Spanish Penal Code has a specific chapter dedicated to corporate crime, aimed at punishing illegal behaviour committed in the business world. These offences apply to administrators, majority shareholders or people with management capacity, and seek to correct situations of abuse of power or disloyalty that can cause damage not only to the company, but also to minority shareholders or third parties. This analysis is essential to understanding how a balance is established between the protection of the general interest and the defence mechanisms of corporate relations.

The importance of this criminal approach lies in avoiding impunity in cases of fraud and manipulation within business structures. Furthermore, in an environment of constant legislative and judicial evolution, it is crucial to keep this knowledge up to date in order to apply it correctly in practice.

Context and Definition of Corporate Crimes

Corporate crime falls within the scope of economic criminal law, an area in which concepts of criminal law and commercial law are intertwined. This dual reference is necessary in order to regulate the fundamental principles of how companies operate, guaranteeing the veracity of accounting information and the correct management of corporate bodies.

Why is it necessary to regulate these crimes?

• Protection against the abuse of power: In companies where a minority controls decision-making, agreements can be imposed that unduly benefit certain actors.
• Transparency in management: The manipulation of documents and the falsification of information can distort the true economic and legal situation of the company.
• Defence of individual rights: Minority shareholders and third parties must be guaranteed access to reliable information in order to fully exercise their rights.

Article 297 of the Penal Code defines the legal definition of a company, establishing the frame of reference and differentiating these crimes from other criminal behaviour of an economic nature.

The Legal Framework in the Spanish Penal Code

The Penal Code deals with corporate crime in a specific way, considering that the intervention of Criminal Law is a subsidiary measure. This means that criminal action is reserved for those cases in which civil or commercial channels are not sufficient to sanction the illicit conduct. This principle of ‘last resort’ stands as a guarantee that Criminal Law acts only when it is strictly necessary.

Likewise, the prosecution of these crimes usually depends on the complaint of the affected party, limiting in most situations the ex officio action by the Public Prosecutor’s Office. However, when the damage extends to the general interest or affects the Public Treasury, the legal system provides mechanisms for direct action.

Detailed Analysis of Specific Crimes

Falsification of Company Documents

Legal Basis: Article 290 of the Penal Code

This offence is aimed at penalising administrators who fraudulently modify the accounts or alter documents that should reflect the economic and legal situation of the company. The main objective of falsifying documents, which may include the annual accounts, is to cause economic damage, either to the company itself, to partners or to third parties.

Key Points:

• Fraudulent Manipulation: The falsifying behaviour must be suitable for causing damage, which means that the mere alteration of the document, even without concrete damage, is already punishable.
• Increase in Penalties: If it is proven that there was indeed economic damage, the penalties will be applied in their upper half.
• Protection of transparency: This offence protects the right of partners and third parties to receive accurate information about the company’s financial situation.

Imposition of abusive agreements

Legal basis: Article 291 of the Penal Code

This article aims to prevent majority shareholders from imposing abusive decisions that illegitimately benefit some to the detriment of others. The imposition of abusive agreements violates the corporate balance and is punishable by both prison sentences and fines proportional to the illicit benefit obtained.

Fundamental Elements:

• Abuse of Power: The behaviour of those who take advantage of their position of control to make arbitrary decisions is punished.
• For-Profit: The existence of an economic benefit for the abusing party is a central element in classifying this crime.
• Protection of Minority Shareholders: This type of crime protects shareholders who may be marginalised in corporate decisions.

Imposition of Harmful Agreements

Legal Basis: Article 292 of the Penal Code

The regulation is extended to penalise situations in which harmful agreements are imposed that, in addition to harming minority shareholders, affect the company itself. The existence of ‘fictitious majorities’ obtained through fraudulent practices, such as the abuse of blank signatures or the undue attribution of voting rights, is recognised.

Essential Aspects:

• Fictitious Majority: Manipulation of the voting process through fraud is considered to constitute a serious alteration of the internal democratic process of society.
• Fraudulent Techniques: Practices include the abuse of blank signatures, the undue attribution of voting rights, and the unlawful denial of the exercise of this right.
• Flexible Interpretation: The rule is numerus apertus, allowing for adaptation to new cases of corporate fraud as business practices evolve.

Obstruction of the Exercise of Shareholders’ Rights

Legal Basis: Article 293 of the Penal Code

This precept directly protects the individual rights of the partners. It sanctions the behaviour of administrators who, without legal justification, prevent the partners from exercising fundamental rights such as the right to vote, to consult the accounts and to share in the profits.

Protected Rights:

• Right to Information: Allows members to be aware of the economic situation and the decisions taken by the company.
• Right to Share in Profits: Essential for transparency in the distribution of profits.
• Right to Vote and Participate: Ensures that all members can influence decision-making at meetings and assemblies.

This type of offence is crucial to maintaining integrity and confidence in the functioning of society.

Obstruction of Inspection or Supervisory Tasks

Legal Basis: Article 294 of the Penal Code

In particularly relevant regulated sectors – such as financial institutions or insurance companies – the obstruction of inspection and supervisory tasks carried out by public bodies is penalised. The regulation seeks to ensure that inspection activity can take place without hindrance, guaranteeing transparency and the proper functioning of the market.

Important Considerations:

• Action of Administrators: Both de facto and de jure administrators are liable if they prevent the control of the inspection bodies.
• Protection of Strategic Sectors: The regulation reinforces legal certainty and supervision in sectors that can have a significant impact on the general economy.
• Punitive Measures: Sanctions including prison sentences and fines are provided for, constituting a strong deterrent against these practices.

Relevance and Practical Application

The regulation of corporate crime not only has theoretical implications, but also has a direct influence on business practice.

• Relevant Cases: Numerous court rulings have reinforced the interpretation of these crimes, establishing precedents that guide both companies and legal professionals.
• Impact on Corporate Management: The correct application of these regulations favours transparency and fairness in decision-making, reducing the risk of abuses that can lead to internal crises or costly litigation.
• Legislative Update: The evolution of the economic and business environment demands periodic reviews of the regulatory content so that the regulations can be adapted to new realities and technologies.

Conclusions and Recommendations

The regulation of corporate crime in the Spanish Penal Code is a fundamental pillar for guaranteeing legality, transparency and equity in the business world. Sanctioning fraudulent and abusive behaviour protects both society and minority shareholders and third parties affected. However, the application of these measures must always respect the principle of ‘ultima ratio’, avoiding recourse to criminal law when other channels (civil or commercial) can resolve the conflict.

Additional Recommendations for Companies and Professionals:

• Constant Monitoring: Periodically review regulations and related case law to anticipate changes and adapt internal policies.
• Internal Training: Conduct workshops and courses for administrators and managers, focusing on the prevention and early detection of behaviours that could lead to corporate crimes.
• Specialised Legal Advice: Consult with experts in Economic Criminal Law to evaluate corporate management and prevent possible legal contingencies.
• Transparency and Communication: Foster a culture of transparency that includes the publication of truthful financial reports and the opening of internal communication channels so that partners can express their concerns.

Contact and Advice

This article is purely informative and is no substitute for professional legal advice. For more information or to receive personalised advice on corporate crime and other legal issues, please do not hesitate to contact info@gimenez-salinas.es.

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