(Do not forget to click on the advertisements)
“Of the disloyal administration”, is the title of the Section II, of the Chapter VI, about the frauds, of the Title XIII, on the crimes against the patrimony and the socioeconomic order, of the Book II of the Spanish Penal Code (CP). Therefore, we continue within the ambit of the frauds, of such crimes which consist in depriving someone of something which by right is his.
The Second Section which we are commenting, is formed by only one article, the article 252, where is regulated the crime of disloyal administration. In this article is where we are going to focus our efforts, but before starting, a little of history, let us learn from where comes the crime of disloyal administration, because it not always was a crime with its own autonomy. The point XV of the Exposition of Motives, of the Organic Law 1/2015 of 30 March by which was modified the Penal Code, says: “The title of the Section II of the Chapter VI of the Title XIII of the Book II is now denominated “Of the disloyal administration”, being created a Section II bis in the same Chapter for integrating the crimes of undue appropriation under the title of “Of the undue appropriation”.
The Penal Code of 1995 opted for typifying the disloyal administration as a corporate crime, in spite of being in reality a patrimonial crime which may have as passive subject any person.
The reform introduces a modern regulation of the disloyal administration, which is not only corporate, among the patrimonial crimes, similar to those which already exist in the different European legislations. Its shift from the corporate crimes to the patrimonial crimes, which is where has to be placed the disloyal administration of alien patrimony, is demanded by the nature of this crime, a crime against the patrimony, in which, therefore, may be anyone the victim, not only a legal entity. Systematic reasons, thus, demanded such decision. Through this crime is tried to be protected the patrimony in general, the patrimony of all those who are a private person or a legal entity, who confers to other the administration of its patrimony, or of those whose patrimony has been placed under the administration of another, by legal decision or of the authority, punishing the excesses in the exercise of the faculties of disposition over this patrimony, guaranteeing that the administrator carries out its charge with the diligence of good businessman and with the loyalty of a faithful representative, in the interest of his administered.
The reform is used likewise, for delimiting with more clarity the penal types of disloyal administration and undue appropriation. Who incorporates to his patrimony, or by any means exercises owner faculties over movable property which was received with the obligation of returning it, commits a crime of undue appropriation. But who receives as administrator faculties of disposition over money, stocks or other generic fungible things, is not obliged to return the same things received, but another amount of the same quality and kind; thereby, who receives from other money and stocks with faculties for administering them, and carries out acts for which he was not authorized, damaging the administered patrimony, commits a crime of disloyal administration.”
Summing up:
1º What was punished as a corporate crime, now it is a patrimonial crime.
2º The legal good protected is the patrimony.
3º The excesses in the exercise of the faculties of disposition over this alien patrimony are punished as disloyal administration.
4º The undue appropriation is now punished in a different section, the Section II bis, as the incorporation of patrimony, or the exercise of owner faculties over movable things which were received with the obligation of being returned.
Let us stop in the fourth point. Because, the criterion which our courts have followed for distinguishing the disloyal administration from the undue appropriation has been the so-called “point without return”, thus, if the appropriation of a movable thing is made with definitive character, we will be before a crime of undue appropriation. The Spanish Provincial Court of Las Palmas de Gran Canaria´s sentence number 994/2023 says: “The difference between the crime of disloyal administration of the article 252 and the undue appropriation has been established attending to the criterion of “point without return” or “definitive expropriation” (Spanish Supreme Court´s sentences of 21 October 2020, 3 March 2021, 18 November 2021, 11 March 2022 and 21 April 2022), and it lays on the fact that in the disloyal administration are included the abusive and disloyal acts of whom have faculties of administration which do not entail definitive expropriation of the goods in his possession, while in the undue appropriation are comprehended the cases of genuine appropriation. The behavior consists in incorporating with definitive vocation to the own patrimony the object received, it will be a crime of undue appropriation always that the denominated “point without return” has been surpassed.”
Another example which we can mention, is the said by the sentence of the Spanish Supreme Court of 13 July 2022: “In reality, the reform is coherent with the more recent jurisprudential doctrine which establishes as distinguishing criterion between the undue appropriation and the disloyal administration the disposition of the goods with definitive character in prejudice of its owner (like the undue appropriation) and the mere abusive fact of those goods in prejudice of its owner, but without the definitive loss of them (like the disloyal administration), (Spanish Supreme Court´s sentence number 476/2015 of 13 July. Consequently in the recent legal reform carried out by the Organic Law 1/2015, the article 252 establishes the corporate crime of disloyal administration of the derogated article 295, extending it to all the cases of disloyal administration of patrimonies in prejudice of its owner, whatever the origin of the faculties of administration, and the undue appropriation to the cases in which the occasioned prejudice to the patrimony of the victim consists in the definitive expropriation of his goods, included the money, behavior which previously was punished in the article 252 and now it is punished in the 253.”
– Article 252 CP:
Let us now analyze, the said by the article 252 of the CP. For this, we are going to start reading it.
“Article 252.
1. Will be punished with the punishments of the article 248, or in its case, of the article 250, those who having faculties for administering alien patrimony, emanated from the law, granted by the authority or assumed through a legal business, are infringed exceeding themselves in the exercise of them and, in this manner, causing a prejudice to the administered patrimony.
2. If the amount of the patrimonial prejudice does not exceed the 400 euros, will be imposed a punishment of fine from one to three months.”
The first that we observe is that, the punishments imposed by the crime of disloyal administration are the same than those for the crime of swindle, depending their intensity on whether concur any of the aggravating circumstances of the article 250.
The second we realize is that, the active subject has to have special qualities, he has to administer an alien patrimony, irrespective of whether these faculties emanate from the law, have been granted by the authority, or have been assumed by means of a legal business. Here we find a big difference, with the disloyal administration, corporate crime, of the original Penal Code of 1995, for only were able to be active subject of such crime, currently derogated, the administrators de iure or de facto of a legal entity. If the administrator de iure of legal entity, is the person formally appointed as such, the administrator de fact is, “either the person who in reality carries out without title, with a null or extinguished title, or with another title, the own functions of administrator, as, in its case, those under which instructions act the administrators of the legal entity” (article 236.3 of the Spanish Corporation Law).
The third that we soon notice, is that there exists no a specific passive subject. As it is already mentioned in the Exposition of Motives of the Organic Law 1/2015, to which we refer before, since the crime of disloyal administration is now a crime against the patrimony and not a corporate crime, the passive subject of the crime can be also any owner of the patrimony who has been the object of the crime, what includes not only legal entities but also any private person.
On the other hand, the typical behavior consists in exceeding the faculties of administration which has been granted causing a prejudice in the patrimony administered. The Spanish Provincial Court of Castellon´s number 732/2023, distinguishes three basic elements in such behavior: “1º) to have faculties of administration in the alien patrimony; 2º) to exceed the faculties for exercising these faculties, being understood as such, the abuse of the faculties granted to him, as well as not acting with the due diligence demanded to a good father of family in the management of the patrimony which has been entrusted. In both cases, the administrator infringes his duties and acts contrary to the interests of the patrimony administered and the relevant is not whether the administrator has the faculties or not for carrying out this act, but rather that he acts as administrator and that these acts produce effects against thirds; and 3º) as a result, the causation of a patrimonial prejudice which may consists in either the decrease of the patrimony effectively assessable or a loss of benefit by an omission in the actions of the administrator who has not carried out the operation which was demandable to him.”
With respect the subjective element, the Spanish Provincial Court of Castellon´s sentence number 732/2023 says: “Regarding the subjective element of the penal type of the article 252 CP, it is not demanded profit-making intention, being enough the generic malice of acting with the knowledge and consent of the prejudice which is occasioned (Spanish Supreme Court´s number 947/2016 of 15 December).”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamachol.com