The Chapter XIII, of the Title XIII (concerning the crimes against the patrimony and against the socioeconomic order), of the Book II (in which are included the crimes and their punishments), of the Spanish Penal Code (CP), has as title “Of the corporate crimes”.
It is a Chapter formed by eight articles, the first five punish each of them a different typical behavior, the article 295 was suppressed, and the last two, one transforms the corporate crimes into semipublic crimes and the other gives the definition of corporation which shall apply to the previous articles.
Let us now analyze the articles.
– Article 290:
Through the article 290 is punished the forging of the annual accounts or other documents which reflect the legal or economic situation of a corporation.
The article 290 says:
“Article 290.
The administrators, de facto or de jure, of a constituted or in formation corporation, whoever falsify the annual accounts or other documents which shall reflect the legal and economic situation of the corporation, in a suitable way to cause an economic damage to it, to any of its members, or a third party, shall be punished with the punishment of imprisonment from one to three years and fine from six to twelve months.”
If the economic damage is caused, the punishments shall be imposed in their superior half.”
The first that we realize when we read the article 290, is that we are before a special own crime, for it can be only committed by the administrators de facto or de jure of a constituted or in formation corporation. Though, it is possible the participation “extraneous” but as instigator, necessary cooperator or accomplice.
On the one hand, an administrator de jure, are either the physical or legal persons, appointed by the corporate´s board of partners, and who besides fulfilling the functions assigned to him by the corporate´s bylaws, has its representation. This appointment has to be in force.
On the other hand, in order to know what is an administrator de facto, we can make use of the definition given by the article 236.3 of the Spanish Corporate Law, “The administrators´ liability is also extended to the administrators de facto. For this purpose, shall have the consideration of administrator de facto either the person who in the reality of the traffic carries out without title, with null and void or extinguished title, or with another title, the own functions of administrator, or in its case, whom under whose instructions act the corporation´s administrators.”
Besides, as we have seen, they have to be the administrators de facto or the jure of a constituted or in formation corporation. Both corporations have an essential difference, while the former has been already inscribed in the trade register, the latter has not been inscribed yet.
We continue reading, and the second that we find are the objective elements of the type, are punished the administrators de facto or de jure of a constituted or in formation corporation, “whoever falsify the annual accounts or other documents which shall reflect the legal and economic situation of the corporation, in a suitable way to cause an economic damage to it, to any of its members, or a third party.”
The wording of the precept makes us question, whether the crime analyzed is a crime of own hand which requires the material realization of the falsification by the active subject or not. The answer is no, it is enough with having had the functional domain of the action. The Spanish Provincial Court of Alicante´s sentence number 1600/2022 says: “The accounting falsification is not a crime of own hand. We shall remember that the crime of accounting falsification maintains the structure of the documentary falsifications, with the only nuance, that it is not satisfied with the damage the functionality of the document, but it also and especially attends to the putting into danger or damage of the patrimony of the passive subjects. Thus, like this Chamber has declared in different resolutions, as the Spanish Supreme Court´s sentence number 781/2014 of 18 November, that the crime of documentary falsification is not a crime of own hand which requires the corporal realization of the forbidden action and the fact that it is not accredited that a person has materially intervened in the falsification is not an obstacle to attribute to him the authorship in such falsifications, since like Spanish Supreme Court´s sentence number 305/2011 of 12 April expresses, for being author it is not demanded that the person had falsified with his own hands the corresponding documents, it is enough with having had the functional domain of the action and that other person, even unknown, had been the material author, in a way that, author is both who materially falsify and who takes advantage of the action if he has the functional domain on the falsification.”
Let us focus on the objective elements of the type. The action consists in falsifying, which according to the Spanish Royal Academy of the Language´s dictionary is “to adulterate or defile something, like the coins, the writings, the doctrines or the thoughts.”
The material object upon which the action is carried out, are “the annual accounts or other documents which shall reflect the legal and economic situation of the corporation.”
Therefore, the active subject, either by himself or through an intermediary, always that he has the functional domain of the action, shall modify the annual accounts or other documents which reflect the economic or legal situation of the corporation, in a way that they do not reflect its real economic or legal situation, in other words, in a way that the third parties who have access to them have a distorted image of the legal or economic situation of the corporation. This is why, like the Provincial Court of Barcelona´s resolution expresses, “the doctrine points out as legal goods to be protected both the mercantile traffic and the economic interests of the corporation, of its partners and of the persons who relate with them.”
Deepening into the act of falsifying, the Spanish Supreme Court, among others, in its Sentence of 5 December 2006, has pointed out that: “…are included into the typical behavior of “falsifying” all the falsifying modalities of the article 390, included the fourth (not to say the truth in the fact´s account), since although such modality produced in mercantile document is not punishable regarding the private persons who commit it (art. 390 in relation with the art. 392), such scenario is not applicable to the present crime of the article 290 cp…”.
Consequently, a falsity is committed:
“1º Altering a document in any of its elements or requisites of essential character.
2º Simulating a document in whole or in part, in a way that is induced to an error about its authenticity.
3º Supposing in an act the intervention of persons that have not had it, or attributing to those who have participated in it declarations or manifestations different from what they have done.
4º Not saying the truth in the facts´ account.”
We cannot forget either that, the administrators have the legal duty of fulfilling with their duties with the diligence of a prudent businessman (art. 225.1 of the Spanish Corporate Law), which, implicitly, and in general terms, obliges them to be truthful with the information that they provide about the corporation.
Changing to the material object upon which shall be carried out the facts. The precept offers an example, the annual accounts, but later it makes clear that it is an open list, which comprehends all those documents which reflects the legal or economic situation of the corporation. The annual accounts are made up of the profit and loss statement, the balance sheet and the notes to the financial statements (art. 254.1 of the Spanish Corporate Law). And according to the Spanish Supreme Court´s sentence number 1458/2003, of 7 November: “Among the rest of the documents whose content cannot be falsified for infringement of the article 290 of the Spanish Penal Code are, without this closing the list of the possible objects of the crime, the ledger books, the minute books, the balance sheets that the listed companies shall share with the Spanish Securities and Exchange Commission (CNMV), those which the entities of credit shall share with the Bank of Spain, and, in general, all the documents destined to make public, through the offering of a real image, the legal and economic situation of the entity which operates in the market.”
We shall add, that the annual accounts or the other documents which reflect the economic or legal situation of the corporation have to be falsified, “in a suitable way to cause an economic damage to it, to any of its members, or a third party.” Therefore, this means that this is a crime of mere activity, since the type does not demand a concrete result for understanding it consummated. We shall understand that the crime is consummated, from the moment that the administrator de facto or de jure, either by himself or intermediary always that he retains the functional domain on the action, falsifies the annual accounts, since for example, the type does not require their approbation by the General Meeting, not being possible to classify those through which the annual accounts are approved as necessary cooperators or accomplices. The Spanish Provincial Court of Alicante´s sentence number 1600/2022 says: “In this sense, the Spanish Supreme Court´s sentence number 94/2018 of 23 February, interprets that the crime of the article 290 is consummated when the accounts, already elaborated and, in their case, audited, begin their way to the presentation to the partners who have to approve them. The activity of these signing the accounts is produced, therefore, after the consummation of the crime, being not possible to classify their behavior as a case of necessary cooperation.”
Nevertheless, it is also true, that in the second paragraph of the article 290 is established an aggravated modality, an aggravated subtype, for the cases in which the result of the economic damage to the corporation, any of its partners or a third party, is actually produced, thereby, in these cases, this is going to be a crime of result.
Regarding the subjective elements of the type, this is a malicious crime, the author must know and want to carry out the objective and subjective elements of the type, that is to say, that the document contains data which does not correspond with the reality. Concerning the damage, it is enough with the eventual malice.
Lastly, we have to point out in relation to this crime, that the Spanish Supreme Court´s sentence number 1256/2004 of 10 December, has admitted the possibility of continuous crime when the falsification of the annual accounts has taken place during various exercises.
– Article 291:
In the article 291 is punished the imposition of abusive agreements by who prevails making use of a majoritarian position. Concretely, the article 291 says:
“Article 291:
Those whoever, making use of their majoritarian position in the shareholders´ meeting or in the board of directors of any constituted or in formation corporation, impose abusive agreements, with profit intention for themselves or others, to the detriment of the rest of the shareholders and without generating benefits to it, shall be punished with the punishment of imprisonment from six months to three years or fine of three times the benefit obtained.”
Let us now analyze the content of this article.
The first that we find reading this precept, is the active subject, this punishes “Those whoever, making use of their majoritarian position in the shareholders´ meeting or in the board of directors of any constituted or in formation corporation…”. Therefore, this is a special own crime, which demands that the active subject must be a member of the shareholder´s meeting or of the board of directors of a constituted or in formation corporation, to put it differently, this has to be a shareholder or an administrator. In this case, the precept does not expressly include the administrators de facto and de jure, therefore, we should attend to the said by jurisprudence, and lacking this, like actually happens, what rules should be the said by the article 28 that establishes the rules of authorship, and where in my opinion, fit in the administrator de facto and the jure, for this article considers authors either who commits the facts by themselves or who commits the facts through another whom they use as an instrument, in other words, the administrators de jure, and why not, even the partners, the difficult in these cases is going to be to prove their participation by practicing the proof in the oral trial.
Besides, a corporation in formation, will be the already constituted in public deed, but not inscribed yet in the trade register.
We continue reading and we obtain the objective elements of the type, to impose “…abusive agreements, with profit intention for oneself or another, to the detriment of the rest of the partners and without generating benefits to it…”. Hence, the article 291 is criminalizing some grave cases of abuse of right (art. 7.2 of the Spanish Civil Code). In fact, in the own Spanish Corporate Law (LSC) is recognized the right to impugn the social agreements (art. 206 LSC) and the board of directors´ agreements (art. 251 LSC) to the partners who are a minority. Then, where is the line separating the civil order from the penal order? The penal order shall punish that behaviors which fulfill the elements of the objective and subjective type, being two of them more important than the rest, the profit intention for themselves or others, and without generating benefits to the corporation, therefore, it is going to be licit, the imposition of an abusive agreement by the majority of the shareholders in a shareholder´s meeting or of the directors in a board of directors´ meeting, with profit intention for themselves or others and to the detriment to the rest of the shareholders, always that this agreement generates benefits to the corporation. The Spanish Supreme Court´s sentence number 172/2010 of 4 March says: “The article 291 departs from the adoption of an agreement licitly obtained but which shall be classified as abusive, and here it is found the essence of the type, which necessarily entails the existence profit intention for themselves or others (of the shareholders who constitute the majority) to the detriment of the minority and always that this does not generate benefits to the corporation, to put it differently, it is licit the concurrence of the mentioned profit intention as compatible with a beneficiary result for the corporation interests, regardless of whether the minority has been damaged.”
Now, let us separate the objective elements from the subjective. Besides being before a purely malicious crime, which cannot be committed by imprudence, and in which the active subject shall know and want to carry out the subjective and objective elements of the type, this article 291 adds two other subjective elements: 1) The “profit intention for themselves or others”, and 2) “…to the detriment of the rest of the shareholders…”.
Both subjective elements, transform this crime into a crime of tendency, whose consummation requires neither a real profit nor a damage.
– Article 292:
Let us firstly see, the content of the article 292:
“Article 292.
The same punishment of the previous article shall be imposed to those whoever impose or take advantage for themselves or a third party, to the detriment of the corporation or any of its partners, of a damaging agreement adopted by a fictitious majority, obtained by abuse of blank signature, for undue attribution of the right to vote to who legally lack it, for illicit negation of the exercise of this right to those who have it recognized by the law, or by any other means or similar procedure, and without prejudice of punishing the fact as correspond if it constitutes other crime.”
The punishments imposed by this article 292, are the same that the established in the article 291, something that hints that former is a simple variation of the latter.
Let us start like before, with the active subject. The article 292 says, “…to those whoever impose or take advantage for themselves or a third party, to the detriment of the corporation or any of its partners, of a damaging agreement adopted…”, therefore,we shall understand that we are before the same scenario than before, to put it differently, this is a special own crime, which only can be committed by the administrators or partners of a corporation.
Let us continue with the objective elements of the type. This article 292 says, “…impose or take advantage for themselves or a third party, to the detriment of the corporation or any of its partners, of a damaging agreement adopted by a fictitious majority, obtained by abuse of blank signature, for undue attribution of the right to vote to who legally lack it, for illicit negation of the exercise of this right to those who have it recognized by the law, or by any other means or similar procedure, and without prejudice of punishing the fact as correspond if it constitutes other crime.”
Pay attention to how the legislator has changed the wording of the type, if we compare it with the previous 291, in my opinion, making more difficult its interpretation. Nevertheless, we are going to maintain the said before, regardless of whether it is imposed a damaging agreement, or takes advantage the partner or the administrator or a third party of this damaging agreement, we shall consider this a crime of mere activity, in fact, it is not demanded that the damaging agreement causes a real damage to the corporation or some of its partners, being enough with this being able to cause it.
In this case, the type makes an enumeration of the commissive means, but it leaves open the door to any other means similar to the expressly mentioned, in other words, in reality this is an open list. Besides, the precept is clear stating that these commissive means can be punished as independent crimes, thereby existing a concurrence of crimes and not of norms (art. 8 CP), which may be real, ideal, or medial. For example, there may be coercions in order to obtain a majority in the voting, which, in my opinion, would entail the existence of a medial concurrence of crimes, since the coercions (art. 172 and following CP) would be the necessary means to impose a damaging agreement to the detriment of the corporation or any of its partners (art. 77.3 CP).
Regarding the subjective elements of the type, this is a malicious crime, which cannot be committed by imprudence (art. 12 CP). And we shall add another element, the damaging agreement must be adopted “to the detriment of the corporation or any of its partners”, which as we saw, transforms this crime into a crime of tendency, not being necessary that this damage is caused, being enough with being suitable to cause it.
– Article 293:
The article 293 refers to the cases in which, the administrators de factor or de jure of a corporation deny or impede the exercise by a partner of its politics rights.
The article 293 says:
“Article 293.
The administrators de facto or de jure of any constituted or in formation corporation, who without legal cause deny or impede to a partner the exercise of its rights of information, participation in the management or control of the corporation activity, or preferential subscription of shares recognized by the law, shall be punished with the punishment of fine from six to twelve months.”
As we are able to observe, it is a special own crime, since it can be only committed by the administrators de facto or de jure of a constituted or in formation corporation.
The typical action consist in denying or impeding, according to the Dictionary of the Spanish Royal Academy of Language, “to deny” is: 1) To say that something does not exist, that it is not true or it is not like someone believes or affirm; 2) To not recognize something, not admit its existence; 3) To say no to what is pretended or asked for, or to not grant it; 4) To prohibit or ban, impede or hinder. And to impede, is: 1) To hinder or make more difficult the execution of something. Therefore, any of these actions, when they affect to any of the rights mentioned in the precept, shall suppose the consummation of the objective elements of the type, for this is a crime of mere activity which do not require a specific result, like a grave damage to the corporation or some of its partners.
Nevertheless, the courts have made a constrained interpretation of the precept, applying the penal law as “last resort”, being only penally reproachable those behaviors which clearly suppose an infringement of the mentioned rights, for example, to barely provide the information requested would not be a penal infringement, although it can be regarded as a civil or mercantile infringement, but to not provide any information does fit in this article 293. In this sense are very clear the arguments of the Spanish Supreme Court´s sentence of 27 July 2003: “The interpretation of the type of corporate crime of the article 293 CP 1995 has been restrictive, in the triple ambit of the object, the typical behavior and the normative element. As object of the penal type the ambit of the right does not reach the scenarios reasonably discussable, which have to be debated in the mercantile ambit, hence only shall be typical those cases of denegation of information to which the partners have the right in a manifest way, like in the cases established in the articles 112 LSA (old Spanish Corporate Law) right of the shareholders to the reports and clarifications that they regard necessary regarding the matters which appear in the order of the day of a General Meeting and the article 212 of the same legal text –right of the shareholders to obtain any of the documents which must be subjected to the approbation of the shareholders´ meeting.
In the ambit of the typical behavior of the article 293 CP 1995, is not criminalize any behavior which merely hinders the exercise of the referred partners´ rights, what might constitute a mercantile illicit. It is expressly required “to deny”, which in this context is equivalent to ignore these rights, or impede, which is equivalent to hinder.”
In this sense, according the Provincial Court of Gran Canaria´s sentence number 994/2023: “It is not demanded reiteration, since it is not a typical element, though the persistence in the denial to inform might express the manifest character of the infringement of the rights (Spanish Supreme Court´s sentences of 9 May 2003 and 26 January 2012) and perhaps for this, and regarding the criminal continuity, it is regarded that the reiterated negative or resistance of the accused to hinder the exercise of the partner´s rights constitute only one action (Spanish Supreme Court´s sentence of 26 November 2002), or one consolidation of this, which give rise to only one crime (Spanish Supreme Court´s sentence of 26 March 2013), which being then of permanent character, would impede the application of the criminal continuity (Spanish Provincial Court of Madrid´s sentence 25 January 2016), though the negative is not verbalize (Spanish Supreme Court´s sentence of 7 June 2017).”
Besides, the negation or impediment to the exercise of the rights has to be without legal cause, being limited the type to those cases in which the administrators deny or impede the right without alleging any cause, to those in which they allege a cause which does not exist, and to those in which the allegation of the legal cause is manifestly abusive. That the existence of a legal cause transforms the facts into licit, has made arise the doubt whether the legal cause might come from the corporate´s bylaws, since the bylaws are a contract, and according to the article 1091 of the Spanish Civil Code, the contracts are laws between the parties, in any case, all doubt should be resolve with a restrictive interpretation of the precept, according to the principle of penal legality.
On the other hand, this must be regarded as a malicious crime, which cannot be committed by imprudence, without any other additional subjective element.
– Article 294:
In this article 294, is punished the fact of impeding or denying the intervention of inspecting entities by those corporations which act in markets subject to administrative supervision.
The article 294 says:
“Article 294.
Those whoever, as administrators de facto or de jure of any constituted or in formation corporation, subjected or which acts in markets subjected to administrative supervision, deny or impede the intervention of the inspecting persons, organs or entities, shall be punished with the punishment of imprisonment from six months to three years or fine from twelve to twenty-four months.
Besides the punishments established in the previous paragraph, the judicial authority may order some of the measures established in the article 129 of this Code.”
The first that we perceive when we read this article 294 is that, it is a special own crime, since it can be only committed by the administrators de facto or by right of a constituted or in formation corporation, with the particularity, that they have to be subjected or act in markets subjected to administrative authorization. A good example, is the publicly listed companies, for they are subjected to the inspection and control of the Spanish Securities and Exchange Commission (CNMV).
Like in the article 293, the typical action consists in denying or impeding, therefore, the inspecting authorities, organs or entities have to be hindered as much as possible in their labor.
This must be regarded as a malicious crime, which cannot be committed by imprudence, and without any other additional subjective element.
– Article 295:
(Removed)
The 295 was removed by the Organic Law 1/2015, being the article where until then was regulated the crime known as disloyal administration, before a special own crime which could be only committed by the administrators of a corporation, but which passed to be a common crime with the aforementioned reform, to put it differently, now the crime of disloyal administration can be committed by anyone, and is posited in the article 252 with its own section, within the Chapter VI (dedicated to the frauds), though, it continues withing the Title XIII, and is still considered a crime against the patrimony and the socioeconomic order.
– Article 296:
The article 296 transforms the crimes of this chapter into semipublic crimes, since they can only be prosecuted upon complaint by the aggrieved person or his legal representative. Though in the case that, the crime affects to the general interests or a plurality of persons, this is going to be a public crime, that is to say, prosecutable ex officio.
The article 296 says:
“Article 296.
1. The facts described in the present chapter, shall only be prosecutable upon complaint by the aggrieved person or his legal representative. When this is a minor of age, a handicapped person needed of special protection or a helpless person, the Public Prosecution can also report the facts.
2. The report demanded in the previous point shall not be necessary when the commission of the crime affects to the general interests of to a plurality of persons.”
– Article 297:
The article 297 gives a definition of corporation which is applicable to all the articles of this chapter.
The article 297 says:
“Article 297.
For the purposes of this chapter shall be understood by corporation all cooperative, Saving Banks, mutual savings bank, financial institution, foundation, commercial corporation or any other entity of analogous nature which for fulfilling its ends permanently participates in the market.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com