Criminal Compliance and criminal liability of legal persons
1922
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Criminal Compliance: some guidelines

Criminal Compliance: some guidelines

Criminal Compliance and criminal liability of legal persons

According to the INE (Spanish Stadistics Office), in 2016 there were 131,505 convictions for economic crimes in Spain (fraud, money laundering, documentary falsification, crimes against finance, etc …).

Since 2010, a series of reforms of the Criminal Code have been carried out to implement the responsibility of legal persons as well as fundamental decisions of the Supreme Court on this.

Principal Objectives of the Reforms operated since 2010

  • That the crime is committed in the name or on behalf of the company and for their benefit.
  • That it falls on a legal person the commission of any of the offenses established in the Penal Code.
  • That in the commission of crimes there has been an absence of control mechanisms and / or prevention of irregular activities carried out, and lack of corporate culture to prosecute crimes.

Penalties of the legal entity and possible mitigation:

  • From fines to the dissolution of the legal person in radical cases.
  • Closure of premises, prohibition of practice, loss of subsidies, etc.
  • Attenuation: when the company collaborates with justice.

Incognito and problematic for the collaboration of the legal person:

The main issues rely on the forms of fraud detection in foreign affiliates of companies: Who can detect it? When does it detect it? How do you detect it? Indeed, if you are abroad you cannot really know what is happening on a daily basis from the mother company into your subsidiaries.

The Corporate Compliance. Definition of the Concept:

There is no specific definition of this concept, but it is under debate in Anglo-Saxon countries since the 1990s.

Corporate Compliance is a mechanism that acts in several areas of a company such as Management, IT, Financial, Legal, etc.

The purpose of this mechanism is to protect a legal entity from the possible crimes of its employees.

Basic constituent elements of Corporate Compliance:

The development of Corporate Compliance within a company can find its basis in the following tasks:

The training.

The prevention.

The control.

The penalty.

In addition to implementing control protocols, there must be a new and clear corporate culture in the company, with specific values ​​and behaviours, making available to employees the necessary resources and training means to avoid the possible commission of economic crimes as well as your report or discovery.

 

The challenges of Corporate Compliance:

The biggest problem for the implementation of a good Corporate Compliance is the high level of specialisation of each legal entity, which causes:

  • Great technical complexity.
  • Excessive volume of documentation.
  • Problems with the economic management of the company.

In summary, it is very difficult to transfer a corporate compliance model between companies, which means that this type of mechanism must be “handmade” in each organisation.

Conclusion:

A malpractice or the lack of a corporate compliance can entail the following risks:

  • The legal risk: sanctions against the company, fines, prohibitions, etc.
  • The economic risk: economic losses, important fines, etc.
  • Reputational and image risk which sometimes could be worse than economical fines.

Therefore, it is recommended to think about advising and trying to include within Corporate organisation a Corporate Compliance and also a corporate culture focused on compliance with Spanish regulations.