Criminal Lawyers in Corporate Criminal Liability

Criminal liability of company directors is one of the most sensitive pillars of modern economic criminal law. The question most frequently raised by business owners, CEOs and board members is whether their position can lead them to prison: according to Spanish Supreme Court case-law, the answer is yes when the prerequisites of Art. 31 CP apply. The director's position does not work as a shield but as a guarantor position (Art. 11 CP) that extends specific duties of control and supervision over the officeholder. The protected legal interests are plural: confidence in commercial traffic, the patrimonial interests of partners and creditors, accounting public faith and the proper functioning of the Tax Administration.

The liability modalities are varied. The director can respond as direct author when signing false invoices, ordering irregular payments or filing fraudulent tax returns; as author by improper omission (Art. 11 CP) when, knowing or being obliged to know subordinates' criminal conduct, failing to prevent it when able to do so; as necessary cooperator or accomplice when facilitating commission by a third party; and, under Art. 31 CP, as liable by reason of office even where typical circumstances do not personally apply. Doctrine distinguishes between the de jure director (formally appointed and registered) and the de facto director (one exercising management functions without formal appointment or with defective appointment), both fully liable for criminal purposes.

The catalogue of penalties applicable to directors is severe and usually combines with accessory consequences. Aggravated unfair administration (Art. 252 CP, harm above €250,000) carries 1 to 6 years' prison and fine; tax crime (Art. 305 CP) 1 to 5 years' prison, fine of one to six times the unpaid amount and loss of tax benefits; accounting forgery (Art. 290 CP) 1 to 3 years' prison; money laundering (Art. 301 CP) 6 months to 6 years' prison; punishable insolvency (Art. 259 CP) 1 to 4 years' prison. To these are added special disqualification from holding administrative office (Arts. 33.6 and 297 CP), proportional fines and civil liability for the harm caused. Furthermore, the legal entity itself can be autonomously sanctioned (Art. 31 bis CP) with fines that may exceed several million euros, judicial intervention or dissolution.

The technical defense of the director rests on four recurring axes. First, challenging intent: actual (not presumed) knowledge of the criminal conduct is an unavoidable typical element to be proven by the prosecution; case-law rejects convictions based on mere inferences derived from the office. Second, formal delegation of functions: a documented delegation to a competent person with effective supervision attenuates or excludes omission liability; this must be supported with organisation charts, board minutes and written policies. Third, existence of an effective criminal compliance programme under Art. 31 bis CP: meeting the six requirements of subsection 5 enables exoneration of the legal entity and, by projection, significantly attenuates that of the director. Fourth, expert challenge: forensic accounting, independent financial reports and economic flow analysis allow questioning the quantification of harm and the causal attribution.

In current forensic practice we observe a progressive hardening of criminal prosecution against company directors. The reform of Art. 31 bis CP by Organic Law 1/2015, Act 10/2022 on Procedural Efficiency, the Organic Law 1/2025 on Justice Service Efficiency and the transposition of EU directives on protection of the Union's financial interests (Directive 2017/1371) and whistleblowers (Directive 2019/1937, transposed by Act 2/2023) have expanded the prosecutorial arsenal. The Tax Agency, the National Securities Market Commission and SEPBLAC have intensified coordination with the Special Anti-Corruption Prosecutor's Office. At Alonso Sala, with more than 15 years of experience in economic criminal defense, we approach each director's file as a multidimensional case: we coordinate accounting, financial and compliance experts; map the imputed economic flows; build exculpatory narratives supported by internal documentation; and articulate coordinated criminal-commercial-tax strategies aimed at dismissal, advantageous plea agreement or acquittal at trial.