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Wednesday, 09 December 2015 09:14

Criminal Corporate Compliance: Criminal Preventive

Organic Law 1/2015, of 30 March, has introduced a new amendment to the Criminal Code that enables legal entities (associations, foundations and corporations) respond criminally liable for the acts or omissions of its executives or its employees, disappearing thus, the applicability of the principle of Roman law societas delinquere non potest, on which nourished the societies could not be subject to criminal reproach.

  • Criminal liability of the legal entity for actions of managers. There will be criminal liability of the legal person when the manager acted on behalf or on behalf of the legal person and direct or indirect benefit of this. Should be excluded, therefore, crimes committed by managers exclusively for their own benefit or third parties outside the legal person.
  • Criminal liability of legal persons for acts of employees. In these cases, there will be criminal liability of the legal person when it might have committed the offense for the duties of supervision, monitoring and control have seriously failed in the circumstances of the case.
  • Type penalties. Among the criminal liability that may be imposed on the legal person highlights the financial penalty, disqualification to subsidies, public benefits or aid, closure of premises and establishments, suspension of activity in the sector where the crime was committed, judicial intervention or the same solution of the legal person.
  • Concurrence of crimes. These punitive consequences may also be imposed regardless of the penalty that corresponds to the / s person / physical s / s responsible / s, even if has not been able to individualize or pursue that / s person / s.
  • Mitigating. Among the circumstances that can mitigate the criminal liability of the legal person stands confession before knowing that the criminal proceedings brought against it, the collaborative research by providing new and decisive evidence, repair or decreased damage before of the trial or the establishment of effective measures to prevent crimes in the future measures, also before the trial.
  • Exoneration of criminal responsibility. The legal person shall be exempt from criminal liability if, among other matters, the board adopts and implements effectively before the crime, organizational and management models that include surveillance measures to prevent the unnecessary offense or reduced form significant risk.
  • Organization and management models. These models should identify activities likely to risk and criminal relevance, should establish protocols for action in taking decisions and implementing them, they must have management models adequate financial resources to prevent the commission of crimes to be forewarned impose reporting mechanisms possible risks and breaches, take disciplinary systems and to periodically check the model.
  • The compliance committee on compliance officer. The legal person intending not be criminally liable shall appoint an autonomous body within the same legal entity to perform control tasks or hire a company specializing in such pursuits prevention and control. In the case of legal persons of small size can be attributed to the administrator supervisory functions.

Moisés Murcia Priego 
Lawyer specializing in Business Law, SF Lawyers