It is important to point out that this crime, in its typical structure, punishes those who, taking advantage of their majority position on the board of directors of a corporation, adopt an abusive agreement.
The new Economic Crimes Law not only reconfigured the modifications of liability and incorporated a special regime for determining penalties and alternative penalties in the light of economic crime, but also added new offenses, whose limits and practical application have filled the business world with resentment.
One of them is contained in article 134 bis of the Corporations Law (LSA), which punishes the illicit of abusive agreements that may take place in the boards of directors.
It is important to point out that this crime, in its typical structure, punishes those who, taking advantage of their majority position in the board of directors of a corporation, adopt an abusive agreement to benefit or economically benefit another, to the detriment of the other partners and without the agreement being beneficial to the corporation.
Next, we proceed to delimit its scope of application in order to provide the following considerations:
First, the criminal type incorporated in Article 134 bis was elaborated from the text contained in Article 291 of the Spanish Criminal Code. Thus, the consideration of the latter, when solving interpretative and application problems of our criminal offense, is essential for our dogmatic and jurisprudence.
In this sense, and in order to delimit the typical scope of the Chilean crime, it is necessary to bear in mind that, in the light of the Spanish dogmatic, the criminal type of abusive agreement has quite specific characteristics that we must consider.
By way of reference, the offense only punishes, without prejudice to the other typical elements of the crime, those agreements that do not benefit society or do not obey a rational need of it. In other words, it does not sanction the adoption of agreements that, even if they are detrimental to minority shareholders, benefit or obey a rational need of the company.
It is essential, then, for the configuration of the crime to have in view the “corporate balance” associated with the adopted agreement. The mere concurrence of the harm to the minority shareholders is not sufficient for these purposes.
Thus, agreements that are beneficial to the company, despite harming minority shareholders, and neutral agreements that obey a rational need of the company, even if they harm minority shareholders, would be atypical.
Secondly, it must be considered that the specific benefit, detriment or effect that an agreement has with respect to the corporate interest must be determined in the light of economic rationality criteria that go beyond the mere consideration of the immediate effects associated with a given agreement.
Consider an agreement which, in principle, generates an economic advantage for the company, but which, in the long term, is detrimental to the company’s interests. In this case, the initial advantage is completely irrelevant for the purposes of the criminal offense of abusive agreement. The conduct may be equally criminal. The same is true the other way around.
Finally, we must mention that the typical conduct punished must be limited to the adoption of those agreements that are suitable to cause prejudice to the remaining partners. In other words, if a certain agreement does not have by itself the possibility of causing harm to the other partners, then it cannot be punished as a result of the crime of abusive agreement.
Notwithstanding the foregoing, such clarifications are merely referential. There are others that must be considered in order to delimit the typical scope of application of Article 134 bis.
The Chilean criminal type, mirroring the Spanish one, cannot be applied in such a way as to go beyond its superficial meaning or contradict its origin. There is already a guide, there are already substantive delimitations that can guide the application of this new crime in our law. And this cannot be overlooked by our doctrine and jurisprudence.
To discuss these issues, please contact our Criminal Litigation team:
Gabriel Zaliasnik | partner | gzaliasnik@az.cl
Loreto Hoyos | Criminal Group Director | lhoyos@az.cl
David Segall | Senior Associate | dsegall@az.cl
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