EXPERT ADVICE

DO YOU NEED A PROCEDURAL LAWYER IN SPAIN?

Article supplied by Welex Lawyers & Accountants

Are you acting as a de facto or de jure director of a company operating in Spanish territory or of a Spanish company? Do you believe that you have suffered an injury to your property or rights as a result of a criminal act committed by a Spanish company?

Our procedural lawyers explain that it is possible that a company acting in a criminal way can be punished as criminally responsible for the commission of such acts.

The initial regulation established in the 1995 criminal code excluded a legal (or juridical) person from being an active subject in a criminal act, embracing the “aphorism societas delinquere non potest” principle. Until 2010, the way to prosecute the commission of a criminal act implemented through a legal person was limited to a derivation of the responsibility of the commission of the criminal act through the administrators de jure or de facto of the legal person. Normative recognition is found in article 31 of the criminal code, which provides that “whoever acts as de facto or de jure administrator of a legal person or in the name or legal or voluntary representation of another, shall be personally liable, even if the conditions, qualities or relations that the corresponding figure of the crime or misdemeanour requires to be the active subject thereof do not concur, if such circumstances occur in the entity or person in whose name or on whose behalf it is performed“.

This regulation made it necessary to act against the administrator of the Spanish company de jure, leaving the company itself safe from the need to carry out activities for unjust enrichment or any other means of safeguarding the civil action derived from the crime. Organic law 5/2010 of 22 June introduced a major modification in the criminal code of 1995 in order to make it possible for action to be taken against the legal person as criminally responsible. This legislative amendment also allows for the establishment of a punitive system consisting of fines and measures that may even include the dissolution of the company itself, without prejudice to the liability of those who, as de facto or de jure directors, may have intervened by action or omission in the commission of the offence.

The updated system also includes the obligation to establish mechanisms for the control and prevention of the commission of criminal acts through the corporate structure, reducing the responsibility of the latter or mitigating it, depending on the case.

Our procedural lawyers in Spain can assist you both in demanding criminal liability from the legal person and/or the de facto or de jure administrator, and in filing complaints or lawsuits to demand criminal liability from the former.