We invite you to read the column written by our partner, Gabriel Zaliasnik, together with Luis Varela-Ventura, on the omission of the corporate officer in the Economic Crimes Law.
One of the most controversial innovations of the Economic Crimes Law was to introduce a model for attributing criminal liability to company directors, through the figure of omission. In short, making them responsible for their inactivity to avoid a result catalogued as a crime in said law.
The mechanism to make such solution operative has a structure in which economic crimes were complemented with rules of personal application that defines as responsible for economic crimes to: “The persons criminally liable according to the general rules for an act considered as an economic crime… who at the time of their intervention had knowledge of the concurrence of the circumstances to which those articles refer” (art. 8 N° 2 LDE). And, then, with a rule that contains a simple mitigating circumstance, under the following wording: “The convicted person, being in an intermediate or superior position within an organization, only limited himself to omitting to carry out some action that would have prevented the perpetration of the crime without favoring it” (art. 13 b LDE).
“No one denies that certain crimes can be perpetrated by the non-avoidance of criminal results committed by subordinates, but this with limits, which cannot be centered only on mere knowledge.”
The intersection of both rules would mean that the mere knowledge of the occurrence of a fact considered as an economic crime, which has occurred in connection with the exercise of a corporate office, function or position, or for the benefit of the company -although without favoring it- would allow attributing criminal liability to the aforementioned executive.
In the records of the law’s reliable history, the then Deputy Gabriel Boric had reservations about the aforementioned rule and, consequently, stated: “[That] the fact of having omitted some action for him is not a reason for mitigation”, to which he was answered by the drafting team of the bill that: “Treating omission as a mitigating factor is intended to smuggle in a tool to effectively hold accountable those higher up in the corporate organization that commits the crime… [as] this point both in Chile and comparative law is resisted [and it was pointed out] that it is a mode of attribution of liability that may be used by judges.”
No one denies that certain crimes can be perpetrated by the non-avoidance of criminal results committed by subordinates, but this with limits, which cannot be centered only on mere knowledge, but duly regulated in rules of general application of the Criminal Code describing general clauses of liability by omission. As does, moreover, the project of total reform of the punitive text proposed by the Government to the National Congress.
What is clear is that a matter as important as this cannot be regulated by smugglers who do nothing to help legal certainty and security, so necessary for the proper functioning of the economy.
Column written by Gabriel Zaliasnik | partner and Luis Varela-Ventura
