Lawyers specialising in commercial crime
With the options sought to open up the mechanisms for the prosecution of crimes committed through legal persons, the aim is to reinforce the legal instruments to make it possible to satisfy civil liabilities in criminal proceedings, avoiding, on the one hand, artificial situations of total or partial insolvency and, on the other, overcoming the obstacles that often exist in finding assets with which to satisfy the civil liabilities committed within legal persons and the difficulties that creditors have in collecting their credits that, as victims of the crime, correspond to them in the criminal order.
With the regulation contained in our criminal code of allowing the transfer to the legal person to prosecute those responsible for the management and operation of the company, the regime of prosecution of actions carried out under the protection of a legal person by the de facto and de jure administrators who belong to it, already introduced in the first section of the sole article of Organic Law 15/2003, of 25 November, which amends Organic Law 10/1995, of 23 November, of the Criminal Code, under which the current art. 31 CP, to which art. 31 bis CP has now been added in the recent reform of the criminal text of 2010 to deepen and define in more detail the regime of criminal liability of legal persons, which until now had been reviled as improper in the criminal liability regime, deriving it only to the persons who managed the legal person..
In particular within the so-called socio-economic crimes we can find:
- Market and consumer offences + Corporate offences.
- Punishable insolvency.
- Industrial property offences.
- Intellectual property offences.
- Documentary forgery.
- Receipt of documents.
- Laundering of assets.
- Corruption offences in international commercial transactions.
- Offences against the Public Treasury and Social Security.
- Offences against workers' rights.
- Offences against the rights of foreign citizens.
Market and consumer offences + Corporate offences
Market and consumer offences are considered to be socio-economic offences. They are of a patrimonial and fraudulent nature and are characterised by the fact that they affect the interests of companies, the entities that regulate the market or the customers themselves. Their legal prosecution is framed in Article 51 of the Spanish Constitution and in a multitude of laws, as well as in European Union guidelines and in Articles 281, 282 and 283 of the Criminal Code.
There are many examples of market and consumer offences. These can include the misappropriation of essential goods or raw materials for the purpose of speculation (1 to 5 years' imprisonment and a fine of 12 to 24 months). The same applies to misleading advertising (6 to 12 months' imprisonment or a fine of 12 to 24 months) and false invoicing (same penalty as above).
On the other hand, according to article 290 of the Penal Code, corporate crimes are all those actions carried out by a commercial company with the purpose of harming itself, any of its partners or a third party. Here we can include false documentation, the adoption of abusive agreements without obtaining a majority at the general meeting or the imposition of fictitious majorities to implement a harmful agreement.
Punishable insolvencies
Punishable insolvency is an offence whereby a person who has contracted a debt makes certain movements in his assets in order to prove that he lacks the resources to pay it. Obviously, this causes damage to the creditor and to the legal asset itself.
Generally, punishable insolvency is carried out through the concealment of elements of the debtor's assets. This offence is defined in Articles 259, 259 bis, 260, 261 and 261 bis of the Criminal Code. Its commission, depending on the seriousness considered by the judge, is punishable by between 1 and 4 years' imprisonment and fines of between 8 and 24 months.
Industrial property crimes
To find the definition of offences against industrial property, we must turn to articles 273-277 of the Criminal Code. Specifically, they are defined as the set of actions aimed at registering, manufacturing, importing, possessing, introducing, offering or using objects protected by patent rights without the consent of their owner. The punishment for those who commit them ranges from 6 months to 2 years in prison and a fine of between 12 and 24 months.
Intellectual property crimes
Plagiarising, distributing, reproducing and/or communicating publicly a work whose intellectual property belongs to another person is considered an offence against intellectual property. Provided, of course, that there is no express consent from the owner.
To find its definition and punishment within the Penal Code, it is necessary to resort to articles 270, 271 and 272 of that legal text. It is punishable by between 6 months and 4 years' imprisonment and a fine of between 12 and 24 months, depending on the seriousness observed by the judge and the intention to cause harm to the holder of the intellectual property rights.
Documentary forgery
Documentary forgery is criminalised in Articles 390-399 of the Criminal Code. The aim of these articles is to safeguard the security of legal transactions, the trust of institutions and citizens in documents as means of proof and public faith.
It is a very serious offence which consists of the alteration, simulation, modification and/or falsification of all or part of a document. In other words, creating a new document on the basis of false data or changing a specific piece of information within a document which, up to that point, was true.
For legal purposes, a document is not a simple sheet of paper. It must be a material medium in which information and data with legal relevance and evidentiary effect have been included (Article 26 of the Criminal Code). Documents can be official, private, commercial or public.
In its most serious variant, the offence of forgery of documents can be punished with up to 8 years imprisonment.
Receiving
The crime of receiving consists of helping another person who has previously committed a crime to take advantage of the effects derived from it. In other words, it cannot be classified as either a perpetrator or an accomplice. Obviously, there must be a financial or any other kind of profit motive. It is also often closely linked to money laundering.
For example, the offence of receiving would occur when a subject offers a warehouse to hide objects or money stolen by another in a robbery. It is defined in Article 298 of the Penal Code and is punishable by imprisonment of between 6 months and 2 years.
Asset laundering
The laundering or laundering of assets or capital is a socio-economic and property crime. Specifically, it is a set of actions aimed at incorporating into legal economic traffic goods from illegal activities such as drug trafficking. In doing so, they are given the appearance of legality and can be used for any lawful purpose.
Money laundering is criminalised in Articles 298-304 of the Criminal Code. These articles distinguish between a basic offence, which is punishable by 6 months to 6 years imprisonment and a fine corresponding to three times the value of the laundered assets, and an aggravated offence.
The aggravated type of money laundering is applied when the assets come from the commission of crimes such as, for example, drug or influence peddling, bribery, embezzlement or fraud. In this case, the penalties are always applied in the higher half.
Corruption offences in international business transactions
This is one of the most recent crimes to be contemplated by Spanish legislation. In fact, it is a consequence of the globalisation process that the world has undergone in recent years. Specifically, it refers to the conduct of those who, either directly or through an intermediary, get an official at the international level to abuse the authority or rights entrusted to him or her in order to carry out legal actions that benefit him or her. In return, a financial, material or other consideration is offered.
For example, this offence would occur when a business owner bribes a customs official to allow him to pass through with illegal cargo on his vessel or land vehicle.
Offences against the Public Treasury and against Social Security
Offences against the Public Treasury and Social Security refer to any attempt or commission of fraud against either of these two Public Administration bodies. This fraudulent action can be carried out by action or omission and against any of the bodies at state, regional, provincial or local level. Generally, its purpose is to evade the payment of taxes. They only apply when the amount defrauded exceeds €120,000. They are punishable under the Criminal Code by up to 5 years' imprisonment and a fine of between twice and six times the amount defrauded.
Offences against workers' rights
They appear in Article 311 et seq. of the Penal Code. They punish all those actions carried out by employers with the purpose of undermining the legal rights of workers. For this, it is necessary that there is deception or abuse of a situation of necessity.
For example, we can talk about the case of an employer who forces an employee to work more hours than he is contractually entitled to without paying him overtime or even without offering him any kind of remuneration under the threat of dismissal. The same applies if you force him not to take holidays or not to exercise his right to strike.
Depending on the seriousness of the action, offences against workers' rights are punishable by prison sentences of between 6 months and 6 years, as well as fines of 6 to 12 months.
Offences against the rights of foreign nationals
The purpose of these offences is, on the one hand, to protect the rights and freedoms of foreign nationals and, on the other hand, to facilitate the control of migratory flows. They are criminalised in Articles 318 bis and 318 bis 2 of the Criminal Code. They punish conduct whereby a person or organisation assists another person or organisation to enter, transit or remain within the territory of the European Union contrary to the legislation currently in force.
This includes actions such as, for example, hiding migrants in the boots of vehicles to cross the border, handing over false passports or organising boats to enter the territory by sea, but also entry as a tourist with the aim of staying permanently. These actions are punishable by 3 to 12 months' imprisonment or a fine.
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