We invite you to read the column written by our Criminal Group Director, Loreto Hoyos, on the crime of abusive agreements in the Economic Crimes Law.
With only one month to go before the new regime of criminal liability of the legal person established by the recent Law on Economic Crimes comes into force, it is necessary to clarify some points to be taken into account in relation to the illicit of abusive agreements.
The new law not only incorporated modifying circumstances of criminal liability, a special regime for determining penalties and alternative penalties in the light of economic crime, but also added new criminal figures, whose delimitations 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 unlawfulness of abusive agreements adopted within the Board of Directors.
Although 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 to benefit or economically benefit another, to the detriment of the other partners and without the agreement being of benefit to the corporation, it is essential, in order to delimit its scope of application, to bear in mind the following considerations.
It is recorded in the history of the law that the criminal offense incorporated in article 134 bis was based on 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 for the purpose of delimiting 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 -mirror of the text of article 134 bis-, enjoys quite specific characteristics that we must consider.
In the first place, and by way of reference, the offense in question only sanctions – without prejudice to the other typical elements of the offense – those resolutions that do not benefit the company or do not obey a rational need of the company. In other words, it does not sanction the adoption of agreements that, even if they are detrimental to the 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 detriment of the minority shareholders is not sufficient for these purposes.
That is to say, agreements that are beneficial to the company, despite harming minority partners, and neutral agreements (that neither benefit nor harm the company), but that obey a rational need of the company, even when they harm minority partners, would be atypical.
Secondly, it should be borne in mind 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. Let us consider an agreement which, in principle, generates an economic advantage for the company, but which, in the long term, turns out to be detrimental to the company’s interest. 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 reverse is also true.
Finally, we cannot lose sight of the fact 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, per se, the potential to cause harm to the other partners, then it cannot be punished under the offense of abusive agreement. Let us think, for example, of an agreement by means of which attorneys-in-fact of the respective company are appointed.
Such dogmatic precisions are merely referential. There are others that must be considered to delimit the typical scope of application of Article 134 bis.
However, the Chilean criminal type, mirroring the Spanish one, cannot be applied in such a way as to exceed its literal tenor or contradict the history of its gestation. There is already a guide and substantive delimitations, which can guide the application of this new crime in our law. And this cannot be overlooked by our doctrine and jurisprudence.
Column written by Loreto Hoyos, Director of the Penal Group.
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