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“Of the punishable insolvencies”, is the title of the Chapter VII Bis, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II, which contains the offenses and its punishments, of the Spanish Penal Code (CP).
It is a relative new chapter, for it was introduced in the CP through its reform by the Organic Law 1/2015, of 30 March (LO 1/2015). The point XVI of the aforementioned law says: “It is carried out a technical review of the crimes of punishable insolvency which departs from the necessity of establishing a clear separation between the behaviors of hindering or frustration of the execution, to which traditionally has been understood referred the crime of fraudulent transfer, and the crimes of insolvency and bankruptcy. These groups of crimes are now regulated in different chapters.”
Then, since the reform of the CP by the LO 1/2015 are distinguished two behaviors. The formerly called crime of fraudulent transfer, and now frustration of the execution, has its own chapter, the Chapter VII, where are regulated those behaviors concerning the concealment of goods or the failure of an execution over them. And the known as bankruptcy crime has also its own chapter, the Chapter VII Bis, which punishes the behaviors tending to harm the credit rights of the creditors involved in a bankruptcy proceeding.
The Chapter VII, which is the object of this writing, is formed by five articles: An article 259, where we find the known as bankruptcy crime; An article 259 bis, which is an aggravated subtype of this, increasing the punishment of imprisonment for the basic type, when some circumstances concur; An article 260, which punishes the debtor who in a state of insolvency or already in a bankruptcy proceeding, favors some creditors in prejudice of the others; An article 261, punishing the presentation of false data for obtaining the opening of an bankruptcy proceeding, and; An article 261 bis, through which are expressly punished the legal entities which carry out, through their managers in fact or by right, any of the typical behaviors mentioned before.
After this brief introduction, let us study each of the articles in detail.
– Article 259:
There has not passed so much time, in legal terms, since the current article 259 was introduced in the CP, by means of the LO 1/2015, this supposes that there is only a limited number of examples of courts which has applied it, and even more limited of courts which has reviewed its application by their hierarchical inferiors. But there are examples, in some of them, is even discussed what article benefits more the convicted, whether the current article 259 or the former article 260. But let us stop here, before continuing it is better if we see the concrete content of the article 259.
“Article 259.
1. Will be punished with a punishment of imprisonment from one to four years and fine from eight to twenty-four months who, being in a situation of current or imminent insolvency, carries out any of the following behaviors:
1ª Hides, damages or destroys the patrimonial goods or elements which are included, or which would been included, in the mass of the bankruptcy proceeding in the moment of its opening.
2ª Carries out acts of disposal through the delivery or transfer of money or other patrimonial assets, or through the assumption of debts, which are not in proportion with the patrimonial situation of the debtor, nor with its income, and which lack economic or business justification.
3ª Carries out selling operations or rendering of services for a lower price than their cost of acquisition or production, and which in the circumstances of the case lack economic justification.
4ª Feigns credits from third parties or proceeds to the acknowledgement of fictitious credits.
5ª Takes part in speculative businesses, which lack economic justification and are, in the circumstances of the case and on account of the economic activity developed, contrary to the duty of diligence in the management of economic matters.
6ª Does not fulfill the legal duty of maintaining the accounts, maintains doble accounts, or commits in its maintaining irregularities which are relevant for the comprehension of its patrimonial or financial situation. Will be also punishable either the destruction or alteration of the account books, when in this way is hindered or impeded relevantly the comprehension of its patrimonial or financial situation.
7ª Conceals, destroys or alters the documentation which the businessman is obliged to keep before the end of the term to which is extended this legal duty, when in this way is hindered or made impossible the study or assessment of the debtor´s real economic situation.
8ª Prepares either the annual accounts or the account books in a way contrary to the regulating norms of the business accounting, in a way that is hindered or made impossible the study or assessment of the debtor´s economic real situation, or does not fulfil the duty of preparing the balance sheet or inventory within the deadline.
9ª Carries out any other active or omissive behavior which constitutes a grave infringement of the duty of diligence in the management of the economic matters and to which is imputable a decrease of the debtor´s patrimony or by means of which is concealed the debtor´s real economic situation or its business activity.
2. The same punishment will be imposed to who, through any of the behaviors to which is referred the above point, causes its situation of insolvency.
3. When the facts have been committed for imprudence, will be imposed a punishment of imprisonment from six months to two years or fine from twelve to twenty-four months.
4. This crime will be only pursuable when the debtor does not regularly fulfill its demandable obligations or has been declared its bankruptcy.
5. This crime and the singular crimes related with it, committed by the debtor or the person who has acted on its behalf, can be pursued without waiting to the end of the bankruptcy proceeding and without prejudice of the continuation of this. The amount of the civil liability derived from these crimes must be incorporated, in its case, to the mass.
6. In no event, the qualification of the insolvency in the bankruptcy proceeding will bind the penal jurisdiction.”
And secondly, after seeing the content of the article 259, we have to do the same with the article 260, for allowing us to make later a comparison between them.
“Article 260.
1. Who is declared in bankruptcy will be punished with the punishment of imprisonment from two to six years and fine from eight to twenty-four months, when either the situation of economic crisis or the insolvency is maliciously caused or aggravated by the debtor or person who acts on its behalf.
2. In order to adjust the punishment the amount of the prejudice inferred to the creditors, their number and economic condition will be taken into account.
3. This crime and the singular crimes related with it, committed by the debtor or person who has acted on its behalf, can be pursued without waiting to the end of the civil proceeding and without prejudice of the continuation of this. The amount of the civil liability derived from such crimes must be incorporated, in its case, to the mass.
4. In no event, the qualification of the insolvency in the civil proceeding binds the penal jurisdiction.”
As we can see, there exist great differences between both, being the article 259 an evolution of the previous article 260 which has tried to solve its deficiencies, mainly describing in a more concrete way the typical behaviors which may be punished. Though the changes are deeper, now it is possible to commit a crime of bankruptcy by imprudence, and besides, the requisite of the previous judicial declaration of bankruptcy has been eliminated. As we already said, these differences between them, have given to the existence of certain debate on whether to apply one or the other, when the facts were committed under the former regulation, for like all of us already know, the article 2.2 of the CP establishes the retroactive effect of those penal laws which favor the convicted, something which can be understood as the other face of the coin, of the non-retroactivity of the non-favorable punishing dispositions or those restrictive of individual rights which recognizes the Spanish Constitution in its article 9.3.
Let us see a couple of examples of the above. The first of them is the Superior Court of Justice of Asturias´s sentence number 268/2021, which says: “It is known that when penal norms are compared for determining which of them is more favorable, the comparison has to be made considering them in their integrity and not partially, for this way of proceeding leads to the application of a third norm which never was into force, following the guidelines marked by the Second Transitory Disposition of the Penal Code.
The new regulation of the punishable insolvency, broadens the ambit of the typical behaviors, gathering cases like, for example the lack of maintaining the accounts (art. 259.1.6º), before not stated (Spanish Supreme Court´s sentence of 1 July 2020). This eliminates the objective requisite of pursuability of the previous judicial declaration of bankruptcy for establishing the situations of “current or imminent insolvency” and contemplates the possibility of committing it for imprudence, when before it was only possible to be committed by malice.
We can only understand as more favorable the punishment established for the basic type, but it is not the case, for here the conviction is for the aggravated subtype of the article 259 bis which establishes the same punishment that the old article 260, with the particularity that this contemplates the amount of the prejudice inferred to the creditors as circumstance which should be taken into account for adjusting the punishment.
…
The scarce sentences which exist from the Superior Courts of Justice about the crime of punishable insolvency ratify the criterion exposed, for, those after the reform of the LO 1/2015, convicts for the old article 260 CP, due to the fact that the facts criminally relevant are previous to it, and not by the new article 259 (like the appealed sentence does), which means that they did not considered the new regulation more favorable for applying it retroactively. (For example, Superior Court of Justice of Galicia´s sentence of 29 September 2020, Superior Court of Justice of Comunidad Valenciana´s sentence number 13/2019 of 21 November and, in particular for containing very similar reasoning the Superior Court of Justice of Castilla y Leon´s sentence number 19/2020 of 14 April).”
And the other example, is the provided by the Provincial Court of Oviedo´s sentence number 1776/2021: “Third.- It is true that the determining factor of the conviction is previous to the entry into force of the LO 1/2015 (1 July 2015), for cannot be considered accredited more acts than those referred to the setting-up of the legal entity, since it is not mentioned anything in the proven facts that after the deed signing, 27 November 2014 and until that the bankruptcy was declared the 16 September 2015 the appellant continued to cooperate in the illicit activity, but the subsumption in the new article 259 of the Penal Code, is not for being in force in such date, but for being regarded more favorable to the accused than the former article 260, which was the in force when the facts were committed, being applied for this reason in a retroactive way (article 2.2. CP), not being admissible the claimed in the appeal, referred to the fact that such behavior is lawful for being previous to the Organic Law 1/2015 of 30 March, for in the date of the commission it was also expressly punished in the article 260 CP.
…
Despite the reform carried out by the LO 1/2015 “has broadened the borders of the current article 259 CP, for it broadens the ambit of the typical behaviors, establishing cases like, for example, the lack of maintaining the accounts (art. 259.1.6º), previously not gathered (Spanish Supreme Court of 1 July 2020), it eliminates the objective requisite of pursuability of the previous judicial declaration of bankruptcy for establishing the situations of (current or imminent insolvency” and contemplates the possibility of committing it by imprudence, it is true that the tried facts would be also subsumable in the derogated article 260 opting for the application of the current article 259.1.9º, taking into account that it depart from a punishment of imprisonment which departs from one year while the previous imposable minimum was of two years of imprisonment and fine from eight to twenty-four months and though the current regulation has suppressed, in the article 259.4, the objective condition of punishability, which was stablished in the old article 260, consisting in the fact that the insolvency had to be accompanied of the declaration of bankruptcy of the active subject, (now it is enough with not regularly fulfilling its obligations), this does not affect the current case in which the legal entity was declared in bankruptcy on 15 September 2015).
In the end, considering this Chamber that the arguments of the appeal cannot be attended, it proceeds to the dismissal of the appeal and the confirmation of the sentence appealed.”
Therefore, if the criminal facts were committed before the reform of the CP by the LO 1/2015, the precept more favorable to the convicted will be the article 259, for containing a less severe punishment of imprisonment, always that the active subject has been declared in bankruptcy, for otherwise, the more favorable precept would be the article 260, since it demands the declaration of bankruptcy of the active subject as an essential requisite for punishing the behavior. On the contrary, in the case that the applicable to the convicted was the article 259 bis, for concurring any of the circumstances mentioned in such aggravated subtype, clearly the precept more favorable to him would be the article 260, for, although the punishment in both articles is the same, the latter contains a more restrictive view of the behavior which may give rise to the commission of the crime.
After the last comparison, which is relevant for the use that the Spanish Courts still make of the former article 260, we have to comment the proper article 259.
The first that the article 259 makes is to establish the punishment which is associated to the different typical behaviors which are mentioned in it, but how severe is punished the crime of bankruptcy is not very interesting, since it only affects to the type of criminal proceeding which should be followed. Thereby, in the first thing that we are going to focus our attention, is in the first requisite established in this article, that the debtor, the active subject of the crime, has to be in a situation of current or imminent insolvency. Then, the first thing that we should know, is when a debtor would be in such situation. For that, we have to make use of the Bankruptcy Law (LC), which states in its article 2.3 that, “It is in a state of current insolvency the debtor who cannot regularly fulfill its demandable obligations. It is in a state of imminent insolvency the debtor who envisages that within the following three months will not be able to fulfill regularly its obligations.”
So far so good. But if we continue reading the article 259, “hidden” in another of its points we find another requisite which should complete the above. In its fourth point, we find that the crime of bankruptcy only “will be pursuable when the debtor does not regularly fulfill its demandable obligations or has been declared its bankruptcy.” Then, we should understand that the said by its fourth point contradicts the said by its first point. The debtor should not be in a situation of current or imminent insolvency, the debtor can only be in a situation of current insolvency for being pursuable the crime, in other words, only the debtor who does not fulfill regularly its demandable obligations can be an active subject of the crime. But there is more, because we cannot forget that this fourth point establishes the alternative circumstance that the active subject has been declared in bankruptcy. Therefore, we can conclude that, active subject of the crime of bankruptcy can only be the debtor in a state of current insolvency or who has been declared in bankruptcy, but not who is in a state of imminent insolvency, for this one will not have failed to fulfill regularly with its demandable obligations. What fits with the said by the article 5.1 LC, which stablishes the duty of the debtor of “requesting the declaration of bankruptcy within the following two months of the date in which he had known or should know the state of current insolvency.” Besides, there exists a presumption of culpable bankruptcy in the article 444 LC, when the debtor has not fulfilled its duty of requesting the declaration of bankruptcy of the article 5.1 LC.
The next that the article 259 does in its first point, is to enumerate the typical behaviors, including a total of nine, though the last can be regarded a kind of junk drawer, where fit “any other active or omissive behavior which constitutes a grave infringement of the duty of diligence in the management of economic matters and to which is imputable a decrease in the debtor´s patrimony or by means of which is concealed the debtor´s real economic situation or its business activity.” As we are able to observe, it is only a general description of the previous eight behaviors, something for which was criticized the former article 260.
The first of then is that, he “Hides, damages or destroys the patrimonial goods or elements which are included, or which would been included, in the mass of the bankruptcy proceeding in the moment of its opening.”
It is normal that, the legislator has chosen this behavior like the first, for it is without doubt the clearer example of how the creditors of a bankruptcy proceeding can be damaged. Remember that, in the active mass of the bankruptcy proceeding is applied the principle of universality, the article 192 of the LC says:
“Article 192. Principle of universality.
1. The active mass of the bankruptcy proceeding is constituted by the totality of the goods and rights integrated in the patrimony of the debtor at the date of the declaration of the bankruptcy proceeding and by those which are reintegrated in it or are acquired until the end of the proceeding.”
Therefore, if the debtor hid, damaged, or destroyed patrimonial elements, which should form part of the active mass, evidently, he would negatively affect its creditors, for it is this active mass from which they should receive the payment from the debtor.
The second behavior punished is that, the active subject “Carries out acts of disposal through the delivery or transfer of money or other patrimonial assets, or through the assumption of debts, which are not in proportion with the patrimonial situation of the debtor, nor with its income, and which lack economic or business justification.”
In the second scenario, we are before another case of depatrimonialization of the company. We see that, what is punished are acts of disposal of money or other assets of the company, or the assumption of debts, which do not have a relation with the patrimonial situation or the debtor´s income, and which lack economic or business justification. For example, a debtor in a situation of current insolvency, may commit a crime of bankruptcy, if he decides to sponsor a sport event generating a great burden to patrimonial situation of the company, when the situation of this is delicate, and besides, it is likely that it will not recover the money invested.
The third typical behavior mentioned in the article 259 is that, the active subject “Carries out selling operations or rendering of services for a lower price than their cost of acquisition or production, and which in the circumstances of the case lack economic justification.”
A case very similar to the studied before, but this time instead of being acts of patrimonial disposal or assumptions of debt, what is punished is the selling of goods or the rendering of services for a lower price than their cost of acquisition or production. Though, like before, the requisite that these acts lack any economic justification should be met.
The fourth behavior which may constitute a bankruptcy crime of the article 259 is that, who is in a situation of current insolvency “Feigns credits from third parties or proceeds to the acknowledgement of fictitious credits.” It has a simple explanation, the more debtors, the more will be the pressure on the bankruptcy proceeding´s active mass, since it will have to be shared among more creditors, thus, greater difficulties for all of them to recover their money will ensue.
On the other hand, in the fifth place, is punished the participation “speculative businesses, which lack economic justification and are, in the circumstances of the case and on account of the economic activity developed, contrary to the duty of diligence in the management of economic matters.” A good example of this speculative activity, may be the buying of cryptocurrency.
In the sixth point, we find another of the typical behaviors, for who “Does not fulfill the legal duty of maintaining the accounts, maintains doble accounts, or commits in its maintaining irregularities which are relevant for the comprehension of its patrimonial or financial situation. Will be also punishable either the destruction or alteration of the account books, when in this way is hindered or impeded relevantly the comprehension of its patrimonial or financial situation.”
Here, as we can see, what is punished is a distortion or concealment in the company accounting. A case of bankruptcy, which is similar to the behavior described in the article 261 CP, and in the article 290 CP.
The article 261 says, of which we will talk later again:
“Article 261.
Who in a bankruptcy proceeding presents, knowingly, falsa data relative to the accounting state, with the end of unduly achieving the declaration of this, will be punished with the punishment of imprisonment from one to two years and fine from six to twelve months.”
Despite their apparent similarity, the typical behavior described in both articles is different. In the article 259.1.6º what is punished is the debtor in a state of current insolvency or in a bankruptcy proceeding, who carries out the behavior described. On the contrary, in the article 261, we are before a counterfeiting activity, aimed at obtaining the declaration of the bankruptcy.
The same happens with the article 290, which says:
“Article 290.
The managers, in fact or by right, of a formed or forming company, who counterfeit the annual accounts or other documents which should reflect the legal or economic situation of the legal entity, in a suitable way to cause an economic prejudice to it, to any of its members, or a third, will be punished with the punishment of imprisonment from one to three years and fine from six to twelve months.
If the economic prejudice is caused, the punishment will be imposed in its superior half.”
The Provincial Court of Alicante´s sentence says, regarding both articles: “Following the analysis of the falsehoods we should remember that the stated in the article 290 CP, usually integrates a relation with the established in the article 261 CP. Insofar as the have the same object, the definitory element of one or other qualification will be determined by criterions of specialty, in a way that if the ambit upon which is projected is exclusively the bankruptcy proceeding, the specialty of the article 261 will impose its applicability, while if the effect of accounting counterfeiting information takes place out of the bankruptcy proceeding, will be applicable the article 290 CP, which requires as accumulated effect, not only the existence of a falsehood, but also a suitability for causing an economic prejudice, this is a patrimonial dimension added to the mere counterfeiting (Spanish Supreme Court´s sentence number 1458/2003, of 7 November).”
The seventh typical behavior is that, the active subject “Conceals, destroys or alters the documentation which the businessman is obliged to keep before the end of the term to which is extended this legal duty, when in this way is hindered or made impossible the study or assessment of the debtor´s real economic situation.”
In relation with this typical behavior, the article 30.1 of the Code of Commerce (C.Com.) says: “The businessmen will keep their books, correspondence, documentation and supporting documentation, duly tidied, during six years, from the last annotation made on the books, except for the established in general or special dispositions.”
And its article 25.1 states that: “All businessman must keep a tidy accounting, suitable to the activity of its company which allows a chronological monitoring of all its operations, as well as the periodic elaboration of balances and inventories. It will necessarily maintain, without prejudice of the established in the Laws and special dispositions, a book of Inventories and annual accounts and another daily.”
Lastly, the last behavior punished is for who “Prepares either the annual accounts or the account books in a way contrary to the regulating norms of the business accounting, in a way that is hindered or made impossible the study or assessment of the debtor´s economic real situation, or does not fulfil the duty of preparing the balance sheet or inventory within the deadline.”
Regarding this last point, we should remember the said by the article 253.1 of the Corporations Act (LSC): “The managers of a company are obliged to formulate, within three months from the closing of the corporate year the annual accounts, the management report, which will include, when it proceeds, the state of the non-financial information, and the proposal of the application of the result, as well as, in its case, the accounts and the consolidated management report.”
Summing up, we can say that any of the above nine behaviors mentioned may be punished, when the debtor is in a state of current insolvency or has been declared in bankruptcy. But we have not everything yet, to the above we should add the said by the second point of the same article 259, which imposes “The same punishment will be imposed to who, through any of the behaviors to which is referred the above point, causes its situation of insolvency.” Thereby, the nine behaviors mentioned in the first point of the article 259 will serve to punish either the debtor who carries out them in a current situation of insolvency or who has been declared in bankruptcy, or the debtor who has provoked its situation of insolvency through them.
So far, we have seen the objective elements to the type, of both the typical behavior of the first point and of the second. Let us now study the subjective.
This is one of the novelties of the article 259, in comparison with the former article 260. Whereas the old article 260 was a crime purely malicious, which could not be committed by imprudence, the new article 259 has broaden its ambit of application including the imprudence. There exists malice, when the active subject knows and wants to carry out the objective elements of the type, even in its eventual modality, when this represents to itself the typical result as probable. On the contrary, the imprudence has been shaped as the infringement of an objective duty of care, either imposed by a norm or by a custom, in this case the active subject does not represent to itself as probable the typical result as consequence of its lack of diligence. But we have to emphasize that the imprudent behavior is much less punished than the malicious.
Concerning the legal good protected by the article 259, the Spanish Supreme Court´s sentence number 2901/2023 says: “In any case, either the article 260 which has been applied, or the current article 259 which has replaced it, have as legal good protected the personal right of credit, being appreciated in them a diffuse interest of economic-social nature, which makes reference to the confidence necessary for the development of the financial and mercantile operations (Spanish Supreme Court´s sentence 1757/02, of 25 October).”
Lastly, it only remains for us to comment on the last two points of Article 259. In the fifth, it is expressly established that, the crime of bankruptcy can be committed without waiting to the end of the bankruptcy proceeding and without prejudice of the continuation of this, and that the amount of the civil liability derived from it must be incorporated to the mass, which will be the passive mass of the bankruptcy proceeding. Regarding this point, the Spanish Supreme Court´s sentence number 2686/2021 says: “3. Finally, we have to refer ourselves to the Spanish Supreme Court´s sentence number 372/2012, of 11 May 2012, of which the appellant mentions a paragraph, in defense of its thesis relative to the necessity of having brough to the proceeding the administrator of the bankruptcy proceeding, which, however, coinciding with the Public Prosecution, we consider that it is not the conclusion, if we read carefully all its text, which we are going to see now: “In the subject of civil liability linked with the crime of bankruptcy, the relationship between the civil and penal jurisdiction is autonomous and interconnected. The article 260.3 CP (current article 259.5) is clear when points out, to the effects which now matter us, that “… the amount of the civil liability derived from those crimes should be incorporated, in its case, to the mass”. The outcome in the ambit of the civil liability will be conditioned, as it is obvious, by the article 112 of the Spanish Criminal Procedure Act (LECrim), according to which, once exercised the penal action, will be also understood used the civil action, unless the damaged by the crime expressly renounces or reserves it for exercising it once the criminal trial ends. Hence, there exists no legal support in order to affirm that the penal Judge called to try the criminal character of the bankruptcy lacks the capacity for pronouncing itself about the civil liability derived from this illicit fact. The sources of obligations are different and as such are applied in each of the proceedings”.
The Spanish Supreme Court´s sentence continues with the paragraph that the appellant transcribes, relative to the treatment in parallel of the civil liability, in different legal orders, though intimately interconnected, with mention of the article 50.2 of the Bankruptcy Law, regarding of which he understands that it urges the penal judges (therefore it does not impose to them), to summon the administration, whose presence in the penal proceeding for having it as a party, is conditioned, as we said before, to its appearance in court, for this it ends its reasoning the sentence considering that there is no obstacle to a pronouncement about the civil liability, though does not appear in court the administration of the bankruptcy proceeding, because it is left open in order that the mercantile judge adopts the decisions related with the treatment of the goods and rights of patrimonial content of the bankrupt. It says it like this: “Summing up, there is no obstacle for ending the penal proceeding with a declaration of the civil liability, whose effectivity will be, however, conditioned by the result of the bankruptcy proceeding. And it will be the mercantile judge who will be in charge of adopting the necessary decisions for, in no event, allowing an unjust enrichment for some of the damaged or a breaching of the principle of equality in the effectivity of the respective credits. Moreover, the article 86 ter 1º, 3º of the Organic Law of the Judicial Branch (LOPJ) points out among the competences of the bankruptcy proceeding judge to decide on “…all execution against the goods and rights of patrimonial content of the bankrupt, whichever the organ which has ordered it”. The same idea is reflected in the article 53.1 of the Bankruptcy Law, which establishes that the mercantile Judge has to enforce the sentences dictated before and after the declaration of the bankruptcy” … who will give to the resolutions pronounced the bankruptcy treatment which corresponds…”.
Lastly, the sixth point of the article 259 establishes that, “In no event, the qualification of the insolvency in the bankruptcy proceeding will bind the penal jurisdiction.”
This point means that, the qualification of the proceeding as guilty or fortuitous, will not bind the result of the penal proceeding regarding the innocence or guiltiness of the accused.
According to the article 442 LC, the bankruptcy proceeding will be qualified as guilty “when in the generation or aggravation of the state of insolvency there has been malice or grave guilt of the debtor or, if it has them, its legal representatives and, in the case of legal entity, of its administrators or liquidators, in fact or by right, general directors, and of whom, within the two previous years of the date of the declaration of the bankruptcy proceeding, have had any of these conditions.”
Though there are also special cases:
“Article 443. Special cases.
In any case, the bankruptcy proceeding will be declared as guilty in the following cases:
1º When the debtor has hidden all or part of its goods in prejudice of its creditors or has made any act which retards, hinders or impedes the efficacy of the seizure in any class of execution initiated or of foreseeable initiation.
2º When during the two previous years to the date of the declaration of the bankruptcy proceeding goods or rights have fraudulently left the debtor´s patrimony.
3º When before the date of declaration of the bankruptcy proceeding the debtor has carried out any legal act aimed at simulating a fictitious patrimonial situation.
4º When the debtor has committed grave inaccuracy in any of the documents accompanying the request of the declaration of the bankruptcy proceeding or presented during the proceeding, or has accompanied or presented false documents.
5º When the debtor legally obliged to maintain the accounts has not substantially fulfilled this obligation, maintains doble accounts or has committed in the one that it maintains relevant irregularities for the comprehension of its patrimonial or financial situation.
6º When the opening of the liquidation has been agreed ex officio for not fulfilling the creditors-debtor agreement due to a cause imputable to the bankrupt.”
And the cases of presumption iuris tantum of guiltiness:
“Article 444. Presumption of guiltiness.
The bankruptcy proceeding is presumed guilty, unless proven otherwise, when the debtor or, in its case, its legal representatives, administrators or liquidators:
1º Have not fulfilled the duty of requesting the declaration of the bankruptcy proceeding.
2º Have not fulfilled the duty of collaboration with the judge of the bankruptcy proceeding and the bankruptcy proceeding administration, have not facilitated the necessary or convenient information for the interest of the bankruptcy proceeding, or have not attended, by their own or by means of representative, to the creditors meeting, always that their attendance would have been essential for adopting the creditors-debtors agreement.
3º If, in any of the previous three accounting exercises to the declaration of the bankruptcy proceeding, the debtor legally obliged to maintain the accounts has not formulated the annual accounts, has not subjected them to audit, having to be done, or, once approved, has not deposited them in the Business register or in the corresponding register.”
After reading these articles from the LC, we see how the penal and civil legislation seem to be regulating the same thing, since they use the same concepts and even describe identical situations. Hence, this sixth point is in charge of remembering us the absolute independence of the penal jurisdiction, with regard to any other order.
– Article 259 bis:
In the article 259 bis we find an aggravated subtype of the basic type of the article 259. For aggravated subtype we understand a variant of the latter, in which the punishments have been increased when some circumstances are met.
The punishment is increased from, one to four years of imprisonment and fine from eight to twenty-four months, to imprisonment from two to six years and fine from eight to twenty-four months.
The article 259 bis states:
“Article 259 bis.
The facts to which is referred the previous article will be punished with the punishment of imprisonment from two to six years and fine from eight to twenty-four months, when any of the following circumstances concur:
1ª When it is produced or may be produced patrimonial prejudice in a generality of persons or it may put them in a grave economic situation.
2ª When it is caused to the creditors an economic prejudice greater than 600.000 euros.
3ª When at least half of the amount of the credits from the bankruptcy proceeding have as owner the Public Treasury, regional, local or foral and the Social Security.”
– Article 260:
In the article 260, we find other two behaviors which are punishable. Both reflecting, the importance of complying with the rules established in the LC for sharing among the creditors the
bankruptcy proceeding´s active mass.
“Article 260.
1. Will be punished with the punishment from six months to three years of imprisonment or fine from eight to twenty-four months, the debtor who, being in a situation of current or imminent insolvency, favors some of the creditors carrying out an act of patrimonial disposal or generator of obligations aimed at paying a non-demandable credit or facilitates a guarantee to which there is no right, when it is an operation which lacks any economic or business justification.
2. Will be punished with the punishment from one to four years of imprisonment and fine from twelve to twenty-four months the debtor who, once admitted the request for the opening of the bankruptcy proceeding, without being authorized to it, neither judicially nor be the bankruptcy proceeding administrators, and out of the cases allowed by the law, carries out any act of patrimonial disposal or generator of obligations, aimed at paying one or various creditors, whether privileged or not, with a postponement of the rest.”
Pay attention in how the punished is, to give preference to one or various debtors to the detriment of the rest. It may serve to justify that, there will no be a crime of frustration of the execution, when the debtor decides to pay a creditor but not another, for if the legislator had wanted to punish such behavior, it would have done so. Nevertheless, there will exist a crime, when the behavior fulfills the requisites of the article 260, in other words, when the debtor pays a creditor or creditors but not the rest, being in a state of current or imminent insolvency or having been admitted the request for the opening of the bankruptcy proceeding.
The first typical behavior consists in, “the debtor who, being in a situation of current or imminent insolvency, favors some of the creditors carrying out an act of patrimonial disposal or generator of obligations aimed at paying a non-demandable credit or facilitates a guarantee to which there is no right, when it is an operation which lacks any economic or business justification.”
Therefore, the debtor must be in a situation of current or imminent insolvency. Remember that the LC, defines in its article 2.3 the state of current or imminent insolvency: “It is in a state of current insolvency the debtor who cannot regularly fulfill its demandable obligations. It is in a state of imminent insolvency the debtor who envisages that within the following three months will not be able to fulfill regularly its obligations.” This does not fit with the conditions of pursuability for the crime of bankruptcy of the fourth point of the article 259, since it seems to be limited to the cases of current insolvency. In any case, this conflict does not exist in the article 260, which does extend its ambit of application to the cases of current or imminent insolvency. Remember too that, the debtor in a situation of current insolvency, has a duty of “requesting the declaration of bankruptcy within the following two months of the date in which he had known or should know the state of current insolvency.” (art. 5.1 LC). Besides, there exists a presumption that, if this duty is not fulfilled, the bankruptcy proceeding should be declared as guilty (art. 444 LC).
It is important that, it has to be a non-demandable credit or a right to which there is no right. Besides, it has to be an operation lacking any legal or business justification.
Evidently, we are before a malicious crime, for the article 260 does not mention anything about its commission by imprudence, like the CP demands (art. 12 CP). The malice will consist in knowing and wanting to carry out the objective elements of the type, including its eventual modality when the active subject represents to itself the typical result as probable, without being demanded the causation of any prejudice to the creditors.
On the other hand, the second typical behavior consists in, “once admitted the request for the opening of the bankruptcy proceeding, without being authorized to it, neither judicially nor be the bankruptcy proceeding administrators, and out of the cases allowed by the law, carries out any act of patrimonial disposal or generator of obligations, aimed at paying one or various creditors, whether privileged or not, with a postponement of the rest.”
In this second case, the opening of the bankruptcy proceeding has been already agreed, this implies that the bankruptcy proceeding´s active mass is already subjected to the rules of the LC for satisfying the debtor´s creditors. Besides, in this case the restrictions are broader than before, for it is forbidden any act of patrimonial disposal or generator of obligations, regardless of whether it is a non-demandable credit or not, or it is a guarantee to which there is no right or not, or this act has an economic or business justification or not. Always that, this is also true, this act has not been authorized either judicially or by the bankruptcy proceeding administrators, nor can it be allowed by the law.
Regarding the subjective type, like before, this is a pure malicious crime, which cannot be committed by imprudence.
– Article 261:
The article 261 says:
“Article 261.
Who in a bankruptcy proceeding presents, knowingly, falsa data relative to the accounting state, with the end of obtaining its declaration, will be punished with the punishment of imprisonment from one to two years and fine from six to twelve months.”
What is punished by the article 261, is to present false accounting data with the aim of unduly obtaining the declaration of the bankruptcy proceeding. In other words, what is punished is the feigning of a state of current insolvency by the debtor.
It is a malicious crime, which cannot be committed by imprudence, and which does not demand the causation of a prejudice to the creditors.
Remember that, though there exist certain similarity with the said by the sixth point of the first point of the article 259, the latter has its ambit of application limited to who being in a situation of current insolvency carries out a concealment or distortion of the accounts of the company.
We should also remember what we said in relation with the article 290. If the crime is committed during a bankruptcy proceeding, the article 261 should be applied, but out of such ambit, the presentation of mendacious accounting information will give rise to the application of the article 290, which also requires, a suitability for causing an economic prejudice.
– Article 261 bis:
The article 261 bis says:
“Article 261 bis.
When according to the established in the article 31 bis a legal entity is responsible of the crimes comprehended in this Chapter, will be imposed to it the following punishments:
a) Fine from two to five years, if the crime committed by the natural person has a punishment of imprisonment of more than five years.
b) Fine from one to three years, if the crime committed by the natural person has a punishment of imprisonment of more than two years not included in the previous point.
c) Fine from six months to two years, in the rest of the cases.
Attending to the rules established in the article 66 bis, the judges and courts can also impose the punishments from the letters b) to g) of the seventh point of the article 33.”
The article 261 bis is putting into practice the stated by the article 31 bis, the cases in which a legal entity may be criminally liable should appear expressly mentioned in the CP. Besides, it establishes the punishments to which this will be subjected.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com