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Wednesday, 22 July 2015 07:06

How to prevent the imputation of companies

Of Organic Law 5/2010 amending the Criminal Code was first introduced in our constitutional legal system criminal liability of legal persons by adding Article 31.bis.

A section of the most authoritative doctrine of that time understood that, given the strict literal interpretation of that provision, legal persons could not be exempted from criminal punishment when the crimes were committed by legal representatives or senior managers who could hire on behalf of society, to exist, so a kind of strict liability for download.

On the contrary, the exemption of the legal entity itself could occur when the crimes were committed by employees, whose duties were to be supervised, monitored or controlled by those representatives, existing, in this case, a kind of responsibility for default organization or the common fault in watching. For this release, and since the existing Criminal Code then did not establish what the program or the appropriate specific measures to be taken by the legal person to avoid criminal liability, it was thought that the entity must prove somehow that despite the effectiveness of controls, the aforementioned employee had managed to escape them.

With the entry into force on 1 July 2015 of the Organic Law 1/2015 of new amendment to the Criminal Code the possibility of exempting or, if necessary, mitigate established, criminal liability of legal persons also in the case that crimes are committed by legal representatives, provided they are approved and implemented by the management body models of organization and management that include certain measures of surveillance and operational control, which are wide regulated and carefully from a point of view strictly generic in the new wording (eg creation of an independent body for monitoring and compliance, taking protocols in decision-making, disciplinary systems, verification and periodic update of the chosen model), but whose detail must be implemented by each company based on its size and its potential areas of risk.

Such models of effective organization and management should also be adopted by legal persons if they exonerate from criminal responsibility for crimes committed by their employees without powers of representation, although the requirements to be met are less detailed by the Penal Code which affect the aforementioned legal representatives.

To implement these models, it can be of great importance to analyze the obligations certain sectoral regulations high demands imposed on the companies involved in the trade, such as the Law on Prevention of Money Laundering, the Law on Data Protection, the Securities Market law and the law on Prevention of Occupational Risks in the field of health and safety.

It should be noted, finally, that potential types of sanctions that can assume the legal entity have not changed since the adoption of the Organic Law 5/2010, reaching range from monetary fine until the dissolution of the legal person, passing by intermediate measures such as the temporary suspension of activities or closure of premises.

Moisés Murcia Priego 
Lawyer specializing in Business Law, SF Lawyers