Corporate vs. Individual Criminal Liability
Dual defense strategy when the company (Art. 31 bis CP) and the director or officer (Art. 31 CP) are simultaneously imputed.
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The Dual Imputation Model in Spain
Since the 2010 reform (LO 5/2010), Spanish law recognizes criminal liability of the legal person in parallel with that of the individuals acting on its behalf. This is the dual imputation model: the same act can generate two criminal proceedings, one against the company (Art. 31 bis CP) and another against the director, officer or employee who materially executed it (Art. 31 CP). Simultaneous defense of both is one of the technically most complex areas of economic criminal law, because interests may align or collide frontally.
Company-Director Conflict of Interest
When the offense benefits the company but the director claims having acted ultra vires (outside their functions, without governing body authorization), a structural conflict of interest arises. The company has an incentive to "sacrifice" the officer and prove that the act was fraudulent circumvention of an effective compliance program. The officer, conversely, has an incentive to demonstrate they acted with knowledge and consent of senior management. In this scenario, Art. 119 LECrim mandates the appointment of a special representative of the legal person other than the imputed officer.
Coordinated vs. Separate Defense
Coordinated defense (same firm representing company and officer) is only viable when interests converge —for example, when both contend that the act is not an offense or that it has prescribed. When interests diverge, separate defense with informational coordination must be chosen. The lead firm must design the group's defense architecture: who represents whom, what information is shared, what is reserved, and how to prevent a strategic plea from harming the individual client.
The Art. 31 bis CP Exemption
The legal person can be fully exempt from liability under Art. 31 bis 2 CP when it proves four cumulative requirements: that the governing body adopted and effectively implemented an organisation and management model (compliance program) suitable to prevent offences of that nature before the act; that supervision of the model was entrusted to a body with autonomous powers of initiative and control; that the individual perpetrators committed the offence by fraudulently circumventing the model; and that there was no omission or insufficient exercise of supervisory functions. Where the requirements are only partially met, the same facts operate as a mitigating factor that reduces the penalty.
Cross Plea Agreements
Because the two liabilities are autonomous (Art. 31 ter CP), a plea bargain by one party does not automatically bind the other. This opens room for cross plea strategies: an early conformidad by the legal entity —acknowledging organisational failings and committing to remediation— can secure a substantial reduction for the company without, if properly drafted, implying any admission against the individual. Conversely, the director's cooperation may attract the mitigating factors of confession (Art. 21.4 CP) or reparation (Art. 21.5 CP). The key is a no-harm protocol that coordinates the acknowledgment of facts while preserving each party's presumption of innocence.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Proportional fine for legal entity (Art. 33.7 CP) | Day-fine, fine proportional to benefit, dissolution, suspension, closure, prohibition to contract with the Administration. |
| Disqualification for grants and public contracts | Up to 15 years. Especially critical for companies dependent on the public sector. |
| Judicial intervention of the company | Up to 5 years. Appointment of a judicial administrator assuming functions of the corporate body. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Coordinated Bifurcated Defense
Two separate legal teams with an information protocol that respects professional secrecy while aligning overall strategy.
Forensic Compliance
Post-event audit of the compliance program to reconstruct its effectiveness and oppose it as evidence at trial.
Differentiated Plea
Propose a plea for the legal entity that does not imply acknowledgment against the individual, preserving personal presumption of innocence.
Economic Criminal Law in Spain: Tax Fraud, Money Laundering and Corporate Crimes
Economic criminal law encompasses the most severe financial penalties in the Spanish Criminal Code. Tax fraud over €120,000 (Art. 305 CP), money laundering (Art. 301 CP), and corporate crimes (Art. 290-297 CP) are complex offenses where defense requires a combination of criminal law expertise and deep accounting/financial knowledge.
Penalty Comparison: Economic Offenses
| Offense | Threshold | Penalty |
|---|---|---|
| Tax Fraud (Art. 305) | >€120,000 | 1 – 5 years + fine x6 |
| Aggravated Tax Fraud | >€600,000 | 2 – 6 years |
| Money Laundering (Art. 301) | Any amount | 6 months – 6 years |
| Aggravated Laundering | Organized/financial system | Up to 9 years |
| Corporate Crime (Art. 290) | Balance sheet falsification | 1 – 3 years |
| Punishable Insolvency (Art. 259) | Fraudulent bankruptcy | 1 – 4 years |
Key Defense Strategies
Tax Regularization Defense (Art. 305.4 CP)
Pay the full tax debt before charges are formally filed and the crime is extinguished. This is the most powerful complete defense in tax fraud cases.
Challenge the €120K Threshold
The tax authority's calculation method is often contestable. Independent forensic accounting can challenge the assessed figure below the criminal threshold.
Money Laundering 'Self-laundering' Issues
Spanish courts have debated whether the primary offender can also be convicted of laundering their own proceeds. Challenge the double jeopardy implications.
Corporate Crime: Harm to Company vs. Shareholders
Art. 295 corporate crimes require actual financial harm to the company or its members. Demonstrate that any loss was speculative or absent.
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