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“Of the undue appropriation”, is the title of the Section II bis, of the Chapter VI, dedicated to the frauds, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II of the Penal Code (CP).
– Introduction and differences between the crime of undue appropriation and disloyal administration, and the crime of undue appropriation and swindle:
The Section II bis is made up by only two articles, then at first sight it may not seem very complex, at least, if we only think of its extension. But the complexity is in another part, the difficult will be to distinguish the crime of undue appropriation regulated in these two articles, from the crimes of disloyal administration and swindle, which are also frauds and lie in the same chapter.
Leaving aside the swindle for now, the difficulty of distinguishing the crime of undue appropriation from the crime of disloyal administration, lay in the fact that not a long time ago, the behavior of disloyal administration for misappropriation of funds was typified as a crime of undue appropriation. The things change, with the entry into force of the Organic Law 1/2015 of 30 March, through which was modified the Penal Code (Organic Law 1/2015). From this moment onwards, the disloyal administration for misappropriation of funds is considered an autonomous crime, the crime of disloyal administration, which passed from being a purely corporate crime, before regulated in the article 295 CP, to be a patrimonial crime, being exponentially broadened its ambit of application, since neither its passive subject is now limited to a legal entity, but to any person who has granted the administration of his goods to a third, nor are the active subjects limited to the administrators de iure or de facto of a legal entity, being enough with being the legal administrator of these goods. Reached this point, we are obliged to read the said by the point XV of the Exposition of Motives of the Organic Law 1/2015: “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 disposal 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 disposal 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.
This new regulation of the disloyal administration motivates at the same time the review of the regulation of the undue appropriation and the crimes of embezzlement.
The crimes of undue appropriation are still regulated in a different section, but leaving outside its ambit the disloyal administration for misappropriation of funds, which passes to be an autonomous penal type of the disloyal administration, what makes necessary a review of its regulation, which is used to for simplifying the previous regulation: it is distinguished now with clarity depending on whether it is a case of appropriation with breaching of the relation of confidence with the owner of the thing, a case which continues to be punished with the punishment equivalent to the disloyal administration and the swindle; or the cases of appropriation of alien movable properties without breaching the duty of custody, as it is the case of the appropriation of lost thing not susceptible of occupation, where is maintained the current aggravation of the punishment applicable in the cases of appropriation of things of artistic, historic, cultural or scientific value, and in the case of appropriation of things received by error.”
We can sum up the above as follows:
1º Who incorporates to his patrimony, or in any way exercises faculties as owner over a movable property which he has received with the obligation of returning it, commits a crime of undue appropriation.
2º Who receives from another money or stocks with faculties of administrator, and carries out actions for which he was not authorized, damaging alien property, commits a crime of disloyal administration.
3º Are left outside the ambit of the crime of undue appropriation, the cases of disloyal administration for misappropriation of funds, which now pass to be an autonomous crime of disloyal administration.
4º Within the crime of undue appropriation are distinguished two cases: The appropriation with breaching of the relation of confidence (art. 253 CP), and; The appropriation of alien movable property without breaching the duty of custody, as the appropriation of lost things not susceptible of appropriation (art. 254 CP).
Let us now focus in the three first points. Pay attention to the fact that, the money is a controversial matter, for it can be the object of a crime of disloyal administration (art. 252 CP) and a crime of undue appropriation (art. 253 and art. 254 CP), a problem that does not exist with the non-fungible goods, which will be always part of a crime of undue appropriation. Then, how do we distinguish both? In order to solve this dilemma, the Spanish Court´s doctrine has created the so-called “point of no return”, in other words, that it is proven that there has been reached a moment in which is appreciated a definitive will of not returning it or the impossibility its return. This excerpt from the Spanish Provincial Court of Madrid´s sentence number 12443/2023 explains well how the problem has been solved: “What is analyzed by the sentence, following the principles of the Sentence 407/2020 of 20 July 2020, is the correct typification of the facts “for appropriating for himself the appellant money which does not exclusively correspond to him and without paying to the damaged what corresponded to him reaching the point without return for not wanting to return the appropriated” affecting to the problem of the correct typification/differentiation between the crime of disloyal administration and undue appropriation in the cases of misappropriation of funds. The Spanish Supreme Court´s points out that: “It is abundant the jurisprudential doctrine pronounced since the entry into force of the reform carried out by the Organic law 1/2015, which still maintains with retroactive effects the categorization of the undue appropriation of money. In fact, if it was admitted the criterion that the undue appropriation only fits in the previous art. 252 CP as “misappropriation”, being in any case a modality of disloyal administration, and thus being that the specific behavior of “misappropriation” does not appear in the current wording of the crime of undue appropriation, we would be obliged to retroactively apply this norm excluding the conviction for undue appropriation, without being easy to fit the punishment in the new crime of disloyal administration which has not been the object of accusation and possible defense in the procedure.”
It remembers the numerous sentences in which the Chamber has maintained the punishment for crime of undue appropriation of money pronounced after the entry into force of the reform, for continuing to point out that: “In reality, the reform is coherent with the more recent jurisprudential doctrine which establishes as distinguishing criteria between the crime of undue appropriation and the crime of disloyal administration the disposal of the goods with definitive character in prejudice of its owner (undue appropriation) and the mere abusive fact of those goods in prejudice of its owner, but without the definitive loss of them (disloyal administration), among others the 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 type of corporate crime of disloyal administration of the derogated article 295, extending it to all the cases of disloyal administration of patrimonies in prejudice of their owner, whatever the origin of the administering faculties, and the undue appropriation the cases in which the prejudice occasioned to the patrimony of the victim consists in the definitive expropriation of his goods, including the money, a behavior before punished in the article 252 and now in the article 253.”
And it continues adding that:
“As the Spanish Supreme Court´s sentence number 18/2016 of 26 January, points out, “the admission of the undue appropriation of money always has created doctrinal and jurisprudential problems, due to its fungible nature, but without entering now into more complex debates it is necessary to affirm that the legislator has closed the question in the reform carried out by the Organic Law 1/2015 of 30 March, specifically maintaining the money as object susceptible of undue appropriation in the new article 253 CP.
What is demanded by the jurisprudential doctrine for appreciating the crime of undue appropriation of money is that what is called “point without return” has to be surpassed, in other words, that it is checked that has been reached a moment in which is appreciated a definitive will of not returning it or the impossibility of its return (Spanish Supreme Court´s sentences number 513/2007 of 19 June, 938/98 of 8 July, 374/2008 of 24 June, 228/2012 of 28 March).” This jurisprudential criterion wholly consolidated is the consequence of previous precedents where were already studied the associated effects to the new legal regimen established by the Organic Law 1/2015, in which the reform of the articles 252 and 253 of the CP was something more than a simple systematic relocation. Afterwards, there has been new resolution in the same direction. It is the case of the Spanish Supreme Court´s sentence number 244/2016 of 30 March, in which is pointed out that “…whereas in the appropriation of non-fungibles things the incorporation to the alien patrimony is instantaneous reflecting the “animus rem sibi habendi”, in the misappropriation of money it is required to give a definitive and different use to the money, thus until this use has not been objectivized it is possible the existence of a mere undue use of the money, which would not suppose the definitive stripping of it by the offender until it is not surpassed the denominated “point of no return” which distinguishes the mere undue use situated out of the penal system, from the appropriation in strict sense. In the same way, in the Spanish Supreme Court´s sentence number 216/2016 of 15 March, quoting the Spanish Supreme Court´s sentences number 370/2014 and 905/2014. Thus, the reform carried out by the Organic Law 1/2015, nothing has altered since this pacific jurisprudence, although it is questioned by a doctrinal sector (Spanish Supreme Court´s sentence number 414/2016 of 17 May)”.
The distinguishing key is that in all these cases there should exist a misappropriation, a diversion, a different use of the agreed, and therefore, a fraudulent action, which exceeds the confidence initially granted to the person who received the money, which does not admit discussion about the will of the author for having been surpassed a point of no return.”
Let us now talk about the difference that exists between the crime of swindle and the crime of undue appropriation. In the crime of swindle, there has to be a previous enough deception which provokes the act of patrimonial disposal in his own prejudice or in prejudice of a third by the passive subject. On the contrary, in the undue appropriation, the active subject of the crime does not execute this enough deception, it is after carrying out the legal business by virtue of which receives the good, when he breaches the confidence of the passive subject, in other words, the legal business is not part of a plan for taking possession of the goods, it is later when he, with malice, decides to incorporate them to his patrimony. The Spanish Provincial Court of Madrid´s sentence number 12443/2023: “In principle, from the theoretical or doctrinal point of view, being both figures, the swindle and the undue appropriation, crimes of fraud, in which are infringed the basic principles of contractual good faith placed in the other party, there exists a basic structural difference. While in the swindle the confidence is defrauded from the beginning of the negotiation which determines the agreement, since it is always preceded by some kind of deceptive maneuver or essential concealment which causes the error that provokes the patrimonial transfer, hence the enough deception, essential element of the swindle, has to be previous or coetaneous, but in the undue appropriation the fraud is after the legal business. The agreement is reached by virtue of a valid legal title which obliges to the return of the thing received or to give it a different use of the previously agreed and it is subsequently when the author, once in the licit possession of the thing received, when he decides, with malice, either to incorporate it to his patrimony, to dispose of it as his owner, in which is denominated the classic modality, or to give it a different use of the agreed surpassing the limits granted by the title of reception, in the so-called modality of misappropriation of money.”
– The crime of undue appropriation of the article 253 and article 254:
Article 253:
Before we said that, in the article 253 we find the crime of undue appropriation for breaching of the relation of confidence, thus distinguishing it from the undue appropriation without breaching of this relation of confidence of the article 254.
Let us now analyze, the elements of the objective and subjective type of the article 253. This article says:
“Article 253.
1. Will be punished with the punishments of the article 248 or, in its case, of the article 250, except when they are already punished by a graver punishment in other precept of this Code, those who, in prejudice of another, appropriate to themselves or for a third, money, effects, stocks or any other movable property, which they have received in deposit, commission, or custody, or which have been entrusted to them by virtue of any other title which produces the obligation of returning them, or deny having received them.
2. If the amount of the appropriated does not exceeds the 400 euros, will be imposed a punishment of fine from one to three months.”
The first we observe is that, as in the case of the crime of disloyal administration, the punishments of the crime of undue appropriation are the same that the given to the crime of swindle. You can find the commentary of the aggravating circumstances of the article 250 in my article about the swindle.
The typical behavior consists in appropriating to himself or for a third and in prejudice of another, money, effects, stocks or any other movable property, which has been received in deposit, commission, or custody, or by virtue of any other title which supposes the obligation of returning them, or also, in denying having received such goods. Therefore, the crime of undue appropriation has to have as object movable property, without being important the title in virtue by which it is received, always that, it is transmitted the possession and not the property.
Regarding the subjective type, this requires malice or the knowledge of the alienness of the appropriated, along the duty of returning them, and besides the will of integrating them into the own patrimony for obtaining an illicit benefit. The Supreme Court´s resolution number 11857/2023 says: “Regarding the subjective element, both the doctrine and the jurisprudence consider that in the undue appropriation it is required that the author acts with “animus rem sibi habendi”, which is understood as the will of disposing of the thing as own or appropriating will, this is, disposing of it as authentic owner.”
The Spanish Provincial Court of Castellon de la Plana´s sentence number 732/2023, enumerates the elements of the crime of undue appropriation: “On the other hand, the referred criminal figure of undue appropriation is shaped by the presence of the following typical elements: – Appropriation by the active subject of money or effects of patrimonial content pertaining to another person, acts of appropriation which, for being under his sphere of dominion by a licit title of possession, will be always ideal, crystallizing in which the doctrine has called the “actio domini”, in concept or with title of owner, what transforms the licit possession in illicit.
– That the title by which the active subject originally has under his sphere of dominion the effects or the money is concreted in any act or legal business which, giving place to the delivery of the object, comprehends the obligation of its putting at disposal or return to the last and true addressee of it, title for whose setting the punitive text uses an enunciating system of “numerus apertus”, in which frame the jurisprudence has pointed out, among others and as usual, the comodato, the renting of things, the trust, etc., in other words, any which licitly transmitting the possession of the things, does not transfer the property. Summing up, the licit possessor of a good of patrimonial content is the only one who can carry out the typical action, something which has driven the jurisprudence to the exclusion from its typical ambit, among others, of the loan, the purchases, the donation, the swap and in general all those legal businesses which suppose the effective transmission of the domain.
– The integration in the own patrimony of the goods or effects through the realization over them of acts which correspond to an owner (to dispose, to sell, to encumber, etc.) with the resulting patrimonial damage to the passive subject (typical damage) shaping itself as a crime of result or injury.
– The concurrence of malice or knowledge of the alienness of the effects which licitly are possessed, and the duty of returning them or delivering them to their owner, and the will of integrating them in the own patrimony with the end of obtaining an illicit benefit, subjective type which is fulfilled with the mere disposal as owner of the effects and money licitly possessed, and which should be understood concurring by the act of disposal, except when it is accredited enough points for destroying the presumption of definitive appropriation derived from not returning or delivering them.”
Later, the same sentence mentions what are the elements of the crime of undue appropriation when the object of the crime is money: “To appropriate, therefore, means to incorporate to the own patrimony, the thing which was received in possession with the obligation of delivering or returning it. To misappropriate is to give to the received a different use of the agreed. If the appropriation in strict sense always falls on non-fungible things, the misappropriation has as object fungible things, and specially the money.
Thereby, when it is money or other fungible things, the crime of undue appropriation requires as elements of the objective type: a) that the author receives it by virtue of deposit, commission, administration or any other title which contains the end for which is given and that consequently produces the obligation of delivering or returning the same thing and amount, with the same quality. b) that the author carries out an act of disposal over the object or the money received which is illicit since it exceeds the faculties granted by the title of reception, giving to it a different use of the agreed, imposed or authorized; c) that as consequence of this act is caused a prejudice to the passive subject, what usually will suppose an impossibility, at least transitory, of recovery. And as elements of the subjective type, that the subject knows that he is exceeding his faculties of acting and that with it he is suppressing the licit faculties of the owner over the thing.”
I suppose that, some of you, if not all, will say, “ok, but is this not a crime of disloyal administration?” Yes, but no, you have to remember what we said at the beginning about the “point of no return”, when it is proven that there has been reached a moment in which is appreciated a definitive will of not returning or delivering the money or the impossibility of carrying out such delivery or return, we will be before a crime of undue appropriation, otherwise, before a crime of disloyal administration.
Article 254:
It is the turn of the article 254:
“Article 254.
1. Who, outside the cases of the above article, appropriates to himself a movable thing, will be punished with the punishment of fine from three to six months. If they are things of artistic, historic, cultural or scientific value, the punishment will be of imprisonment from six months to two years.
2. If the amount of the appropriated does not exceed the 400 euros, will be imposed a punishment of fine from one to two years.”
The first thing that we realize is that, it is reduced the punishment in this modality of the crime of undue appropriation, this is not the punishment assigned to the crime of swindle like in the article 253, but one more adequate to the disvalue of the action, although, it is also true that, the punishment is increased if it is a thing of artistic, cultural or scientific value. The appropriation does not derive from a title which generates the obligation of returning or delivering the movable thing, and which transmits the possession but no the property, but from any other case in which someone has appropriated to himself an alien movable thing, as the appropriation of lost thing not susceptible of occupation.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com