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.

Forms of Liability

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, being in a guarantor position and knowing of 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 perpetrator of an offence requiring a special status even where that status (for example, being the taxpayer) belongs to the company rather than to them. 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.

Penalties

The catalogue of penalties applicable to directors is severe and usually combines with accessory consequences. Aggravated unfair administration (Art. 252 CP, harm above €50,000) carries 1 to 6 years' prison and a fine, rising to 4-8 years above €250,000; 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 and a fine of 6 to 12 months; money laundering (Art. 301 CP) 6 months to 6 years' prison and a fine of one to three times the value; punishable insolvency (Art. 259 CP) 1 to 4 years' prison and a fine of 8 to 24 months. To these may be added special disqualification from holding administrative office, imposed as an accessory penalty (Art. 56.1.3 CP), and civil liability for the harm caused. Furthermore, for the offences where the CP so provides (such as tax offences, money laundering or insolvency offences, but not unfair administration or false accounting), the legal entity itself can be autonomously sanctioned (Art. 31 bis CP) with fines that may exceed several million euros and, in the cases of Art. 66 bis CP, judicial intervention or dissolution.

Defence Strategy

The technical defence 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; it does not in itself exempt the director, but it helps prove that they fulfilled their duties of oversight and control. Fourth, expert challenge: forensic accounting, independent financial reports and economic flow analysis allow questioning the quantification of harm and the causal attribution.

Current Forensic Practice

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, 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 defence, we approach each director's file as a multidimensional case: we coordinate accounting, financial and compliance experts; map the economic flows attributed; build exculpatory narratives supported by internal documentation; and articulate coordinated criminal-commercial-tax strategies aimed at dismissal, advantageous plea agreement or acquittal at trial.