Fernando Osuna, White-Collar Crime Lawyer at ONTIER Spain, analyses the 'Criminal liability of the legal person and the necessary inclusion of the crimes of unfair administration and misappropriation' in the following article for Lefebvre El Derecho:
I.- Background of the crimes of unfair administration and misappropriation in our Criminal Code
The offence of unfair administration was first regulated in the Spanish legal system in 1995. Its exclusively corporate and non-proprietary nature meant that this provision had a less frequent practical application than initially expected.
On the other hand, the crime of misappropriation occurred when the subject received the legitimate possession of money or perishable goods with the obligation to give it a certain destination, which was never fulfilled, since the offender intended to incorporate it into his or her own assets or into those of a third party.
Thus, in order to distinguish between the two concepts and thus avoid unnecessary interpretative misunderstandings, the Legislator repealed article 295 of the Criminal Code relating to the fraudulent administration of companies in November 23, 2015, granting it a new position in article 252 of the Criminal Code, and moved the crime of appropriation to article 253 of the substantive criminal law, and from that moment on, the crime of the administration of the company became an offence.
Therefore, since that year, the current typical conduct in the crime of unfair administration has been extended to any situation regarding the management of other people's assets (money, effects, securities, property), in which the active subject of the crime -which may now be any person endowed, by law, contract or authority- with certain powers to manage other people's assets - exceeds the limits of his or her powers.
II.- Current situation of both crimes: on the way to the next reform of the Criminal Code
Parallel to the aforementioned, the modification carried out in 2010 led to the introduction of collective entities into the Spanish criminal law system.
We understand that in the following reform of the Penal Code, the crimes of unfair administration and misappropriation must be included within the system that covers the criminal liability of legal persons, since otherwise, innumerable behaviours would be atypical from the legal-criminal perspective for companies that participate illegally in the socioeconomic order.