The requirements to be appointed supervisor are established, as well as their functions and attributions.
On September 26, the regulation regulating the supervision of legal entities was published in the Official Gazette, in accordance with the provisions of the Law on Economic Crimes.
Among the most relevant modifications, the figure of supervision of the legal person was incorporated, which may be ordered by a court as a penalty, precautionary measure or condition of a conditional suspension of the procedure.
In addition, it seeks that the companies that are part of the proceedings establish an effective system for the prevention of economic crimes.
Among the most relevant aspects for the application of this regulation, there are several elements that are key for the effective functioning of the system of supervision of legal entities.
The following are mentioned below:
- Definition of the supervision of the legal person: According to the regulation, the supervision of the legal person consists of the “subjection to a supervisor, appointed by the court, responsible for ensuring that the legal person effectively develops, implements or improves a crime prevention system within a minimum of six months and a maximum of 2 years”.
- General requirements for the implementation of the legal person: The court shall appoint a supervisor in cases where it is determined that the legal person does not have a crime prevention system, or such system is insufficient to prevent crimes.
- Obligations: The legal person shall be obliged to make available to the supervisor all information necessary for the performance of the assignment, including allowing access to its premises and facilities.
In addition, he/she will have the obligation to comply with the instructions given by the supervisor in the elaboration, implementation, improvement or control of the functioning of the crime prevention system.
Regarding the figure of the supervisor, there are several key aspects that are fundamental to understand his role and responsibility within the system of supervision of legal persons, among which are the following:
- Qualifying requirements to hold the position: the supervisor must be a natural person who meets certain requirements such as:
- Having a relevant professional degree (professional career of at least ten semesters duration).
- At least five years of accreditable experience.
- Knowledge in risk management and crime prevention, and experience in the applicable legal framework.
- In addition, he/she must ensure that there are no conflicts of interest or prohibitions and disqualifications that affect the performance of his/her duties.
2. Powers and duties of the supervisor:
- May issue instructions and establish conditions on the legal person’s crime prevention system, as determined by the court.
- He has the right to access information, facilities and interview personnel necessary to fulfill his function.
- His performance is limited to the prevention of crimes, and he must maintain confidentiality on the information obtained, except in public reports.
- In addition, he is considered a public employee for purposes of his responsibilities.
3. Remuneration of the supervisor: The remuneration of the supervisor will be determined by the court according to market criteria and will be the responsibility of the company.
This remuneration will cover all expenses and fees related to the supervision, including those of the supervisor’s team.
Candidates will propose their remuneration at the appointment hearing, considering factors such as the size and complexity of the legal entity, as well as the remuneration of similar supervisors and other relevant positions.
For more information on the application of these regulations, we recommend consulting our Compliance group:
Rodrigo Albagli | Partner | ralbagli@az.cl
Yoab Bitran | Compliance Group Director | ybitran@az.cl
Caterina Ravera | Senior Associate | cravera@az.cl
Sebastián Achondo | Associate | sachondo@az.cl
Loreto Osorio | Associate | losorio@az.cl
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