Which legal entities face legal responsibilities in Spain?
- Until the enactment of the Organic Law 5/2010, the reform of the Spanish Criminal Code (SCC) of 22nd June 2010, the principle of “societas delinquere non potest” ruled.
- The update of said “Law” has established those circumstances, including extenuating and mitigating circumstances, under which legal persons subject to private law (mercantile companies) may be held criminally responsible.
The provisions on the criminal responsibility of legal persons will not apply to the State, Territorial Public Administrations, Regulatory Authorities, Public Business Agencies and Entities, to International Public Law Organizations, or any others that exercise public administrative powers or public powers of authority.
¿Under what premises may legal persons bear penal responsibility?
“Whoever acts as de facto or de jure administrator of a legal person, or on behalf or in legal or voluntary representation or another, shall be held personally accountable, even though he does not fulfil the conditions, qualities or relationship that the relevant definition of felony or misdemeanour requires to be an active subject thereof, if such circumstances concur in the entity or person in whose name or on behalf of who he so acts”. (art 31 SCC)
Legal persons will bear legal liability in the following cases:
- For the felonies committed in their name or on their behalf, and to their benefit, by their legal representatives and de facto or de jure administrators. (art 31 bis 1.a SCC)
- In the same cases, legal persons shall also be criminally accountable for the felonies committed when perpetrating the corporate activities and on account and to the advantage, thereof, who, these being committed by the natural persons mentioned in the preceding Section, were able to perpetrate the acts as due control was not exercised over them in view of the specific circumstances of the case. (art 31 bis 1.b SCC)
What are the penalties applicable to legal persons?
Penalties applicable, that are deemed serious (art 33.7 SCC), are as follows:
- Dissolution of the legal person.
- Suspension of its activities.
- Closure of its premises and establishments.
- Prohibition to carry out the activities through which it has committed, favoured or concealed the felony.
- Barring from obtaining public subsidies and aid, to enter into contracts with the public sector, and to enjoy tax or Social Security benefits and incentives.
- Judicial intervention.
How to avoid accusation and sentence?
If the crime was committed under the name of a company or by its legal representatives or those who, acting individually or as constituents of an organ of the legal person, are authorized to make decisions on its behalf, the legal person shall be exempted from the legal responsibility if the following conditions are met (art 31 bis.2 SCC):
The administrative organ has adopted and executed efficiently, before the commission of the crime, organisation and management models which include supervision measures and control suitable for preven