economic criminal law

Economic criminal law is a specific branch of criminal law focused on all those criminal conducts derived from economic activity. It is made up of those that can be committed within the business environment, as well as those that harm the socioeconomic interests of the State and also those that affect the patrimony of individuals. It is a right that protects and protects the economic order of the State and the economic relations between companies and individuals.

Crime typified in arts. 248, 249, 250, 251, 251 bis, Section 2, Chapter VI Fraud, Title XIII Crimes against property and against the socioeconomic order, of the Penal Code.

It is a patrimonial crime necessarily fraudulent, being configured as requirements for the existence of a criminal offense that a person, moved by profit motive, deploys a conduct that involves a sufficient deception, either prior or concurrent, to produce an error in a third party, inducing him to perform an act of disposition to his own or another’s detriment.

The legal asset protected in all types of fraud is the assets of the injured person or company. Nowadays, most of the fraud crimes are committed through the Internet, through the fraudulent use of credit cards, online payment gateways, e-commerce or even dating websites.

Criminal offense typified in Art. 252, Section 2, Chapter VI Fraud, Title XIII Crimes against property and against the socioeconomic order, of the Penal Code.

It is a crime of result, which does not require a profit motive or deception, committed by a person who, having the power to administer the assets of others, infringes such powers, causing damage to the administered assets.

We are talking about a crime usually committed within the company, in such a way that the administrator, by malice or gross negligence, causes economic damage to the company, although, after the reform operated in the Penal Code in 2015, it is not a requirement that the affected assets be those of a commercial company, and the crime can be applied to any type of assets.

Nor is it a requirement that the person committing the offense have the title of administrator, it being sufficient that he/she has the necessary powers to be able to administer the assets of a third party.

Criminal offense typified in Articles 253 and 254, Section 2.bis, Chapter VI Fraud, Title XIII Crimes against property and against the socioeconomic order, of the Penal Code.

This is a crime of a markedly monetary nature, committed by a person who, having received a movable thing by any title that produces an obligation to deliver or return it, instead of doing so, incorporates it definitively into his own patrimony.

This crime is usually confused with the crimes of fraud, unfair administration or even theft, although its determination is marked by the fact that a person has received in commission, deposit or custody any movable thing and, when the time comes to return it, refuses to do so.

In most cases, the crime involves money, either in cash or deposited in bank accounts, although in recent years there has been a boom in the misappropriation of inherited property or rental cars.

The crime of concealment of property is found in Title XIII (crimes against property and against the socioeconomic order), Chapter VII (frustration of execution), Articles 257 to 258 ter of the Criminal Code.

The “alzamiento de bienes” (in its denomination given by the Penal Code, frustration of execution) is a crime committed by the person who, having contracted debts or being aware of them, hides or makes disappear all or part of his assets with the purpose of making it more difficult for the creditor to collect.

That is to say, the debtor, knowing his condition, places himself in a situation of insolvency to avoid his obligation to pay the same. It is not necessary to cause real harm to the creditor, the concealment of assets by the debtor with the intention of harming the creditor is sufficient. It is not, therefore, a crime of result, it is enough that there is an intention to harm.

It is not necessary, either, that there is a judicial title proving the existence of a debt, it is sufficient that there is a monetary obligation owed by the debtor and that the debtor tries to evade it through the concealment, total or partial, real or fictitious, of his patrimony.

Usually, in this type of crime, in addition to the debtor himself, who is liable as the perpetrator, the person or persons who receive the assets disposed of by the debtor may also be investigated and, if appropriate, charged and convicted, as necessary cooperators, especially when this transfer of assets takes place within the family (for example, if a debtor donates a house to his child or spouse to avoid seizure, it is very likely that both will end up being liable, the former as perpetrator and the latter as necessary cooperator).

The crimes of documentary falsehood are included in Title XVIII (of falsehoods), Chapter II (of documentary falsehoods), articles 390 to 399 of the Penal Code.

The crime of forgery is committed when the perpetrator alters, simulates, modifies or falsifies a document or part of it. The creation of a new document from a false one, as well as the adulteration of one of the elements of the document (usually its signature), is considered a forgery.

The protected legal interest is public faith and security in legal transactions, as well as the confidence of citizens and institutions in documents as means of proof.

For their commission, the existence of fraudulent intent is required, and they are crimes of mere activity that are perfected independently of their result.

In most cases, in order to prove or deny the existence of the crime, it will be necessary to have the assistance of a handwriting expert.

In recent years, the counterfeiting of credit cards, electronic signatures or tickets issued by the POS in sales made with bank cards has proliferated. This firm specializes in this type of document forgery, the increase of which has come hand in hand with the rise of new technologies.

Punishable insolvency is an economic crime included within the crimes against patrimony and the socioeconomic order. It is regulated in articles 259 to 261 bis of the Criminal Code.

The crime of punishable insolvency is an economic crime committed by a debtor who performs any action or omission with the purpose of damaging the insolvency estate or giving a false image of his economic solvency.

The protected legal right is the right of creditors to the satisfaction of their claims with the debtor’s assets. This right is a legal guarantee recognized in article 1911 of the Civil Code, covering all the debtor’s assets, present and future. At the same time, the proper functioning of the credit system is also considered a protected legal right.

The offense is perfected when the debtor hides or destroys assets that should be included in the insolvency estate; makes acts of disposition without economic or business justification; makes sales at a lower cost than the acquisition cost; simulates third party credits or recognizes fictitious credits; breaches the duty to keep accounts or prepares the accounts in a manner contrary to the regulations. In short, any active or omissive conduct that constitutes a serious breach of the duty of diligence in the management of economic affairs and to which a decrease in the debtor’s assets can be attributed or by means of which the debtor’s real economic situation or business activity is concealed.

Its main difference with the crime of concealment of assets lies in the fact that while in punishable insolvency, the perpetrator must be in a situation of actual or imminent insolvency, the crime of concealment of assets does not require this element.