We address the main changes brought about by the forthcoming Economic Crimes Law in Corporate matters.
The new Economic Crimes Law involves the inclusion of more than 200 offenses that are currently contained in various legal bodies.
However, what are the main changes that the law brings to the configuration of criminal liability in corporate crimes?
First, the law modifies types that already existed in the legal system, and includes a new crime, which for the purposes of this law will always be considered economic crimes. In this way, the special regime of modifying circumstances of criminal liability, determination of the penalty and forms of compliance with the same will be applicable.
As for the offenses already present in our system that the law modifies, we find:
Crime of delivery of false information foreseen and sanctioned in the Corporations Law: Not only does it specify in greater detail the type of false information that will be deserving of criminal reproach, but it also expands the active subject who, as a natural person, may incur in criminal liability.
In this sense, it seeks to criminally prosecute the director, manager, administrator or the main executives of a corporation, who delivers false information to one of the partners, to the administration or to a third party, regarding the financial or legal patrimonial situation of the same, with a penalty that starts at 541 days of minor imprisonment in its medium degree, to 5 years of minor imprisonment in its maximum degree.
The same penalty will be imposed on those who keep the accounting records of the company, the experts, external auditors or account inspectors who collaborate with the delivery of this false information. Notwithstanding the foregoing, the law empowers the court with criminal jurisdiction to aggravate, optionally by one degree, the aforementioned natural person if the act is committed in relation to an open corporation, and may even be sentenced to a felony.
Incompatible trading: It is modified to include only open or special corporations, leaving out closed corporations, thus covering transactions between related parties that affect the securities market.
Corruption of private individuals: The active subject is broadened to include, since its publication, in addition to employees or agents, the director and administrator of a company.
Finally, as regards the incorporation of a new crime that will always be understood as an economic crime, it is the one that has generated the most questions, called “abusive agreements” that is incorporated to the Corporations Law, and that intends to punish those who, taking advantage of a majority position within the board of directors of a corporation, adopt an abusive agreement to benefit or economically benefit another, to the detriment of the other partners, without it being necessary that the agreement has brought a benefit to the corporation. Likewise, those who, taking advantage of their position as controller of the company, induce the abusive agreement of the board of directors or concur with their agreement to its execution, will be sanctioned.
Need to talk about Economic Crimes? Contact us:
Rodrigo Albagli | Managing partner | ralbagli@az.cl
Francisca Franzani | Directora grupo Compliance | ffranzani@az.cl
Daniela Castillo | Asociada | dcastillo@az.cl
