How do Companies commit crimes?

Companies can be offenders subject is a reality that exists since it came into force in 2010, the Organic Law 5/2010 of 23 June, amending the Spanish Criminal Code.

Articles 31, 31a and 31b of the Penal Code, criminal liability of legal persons and their managers is threshed. This new aspect punitive penal bodies management companies, along with the reform of the Companies Act Capital, has been assumed to be a member of a Board of Directors or be sole administrator, currently is a profession very risky.

Companies will be criminally liable, even with the knowledge of their owners, of certain crimes committed by managers or employees in the exercise of his office.

But what how companies can commit a crime?

Article 31a answers this question and provides two aspects of criminal liability of legal persons:

Article 32a of the Penal Code.:

  1. In the cases provided for in this Code, legal persons are criminally liable:
  2. a) Of the crimes committed in the name or on behalf of them, and their direct or indirect benefit, by their legal representatives or by those who individually or acting as part of an organ of the legal person, they are authorized to make decisions behalf of the legal person or hold powers of organization and control within it.
  3. b) Of the offenses committed in the exercise of social activities for and on direct or indirect benefit of themselves, who, being under the authority of individuals mentioned in the preceding paragraph have been able to make the facts have serious breach of those duties of supervision, monitoring and control of their activity addressed the specific circumstances of the case.

In the event a), a company or organization criminally liable if their representatives, managers or those who have ability and decision on behalf of society, commit a crime within the business and this entails some kind of benefit the legal person.

In the case b), the company will have to answer criminal to justice when the crime was said by anyone being under the authority of the representatives of the company, its directors or persons with capacity for organization and control, not they have been duly monitored, monitored and controlled in its activity. We are facing possible crimes committed by any employee of the company, including external (suppliers of goods and services).

Importantly, according to art. 31b of the Penal Code, companies (and legal persons in general) criminally liable even if the particular individual perpetrator of the crime has not been identified, has died or been withdrawn from the action of justice.

Hence it is very important the adoption of organizational models and management companies including surveillance and control for the prevention of crimes in the environment of their activity, since only through these models, the organization may exempted from criminal liability in cases of crimes committed by the persons mentioned above. Programs are known Criminal Compliance.


This publication is also available in: Spanish French