Crimes in the Family Business in Spain: the Art. 268 CP Family Exemption

A family-business dispute rarely reaches the criminal court as a fresh matter: it arrives with years of history behind it —a succession never properly closed, meetings held without the required formalities, a sibling shut out of management— and with the accounts already in everyone's hands. Once that material becomes a private prosecution, what decides the case is not the gravity of what happened but a two-subsection rule few people read in full. As criminal defence lawyers in family-business conflicts, we set out what Art. 268 of the Spanish Criminal Code (CP) actually says, why it covers far less in a corporate setting than the parties assume, and how the choice between the criminal and commercial routes is made.

A relative has brought a private prosecution over the family business: what happens next

The first reaction is usually the wrong one: assuming that the family tie covers everything. Art. 268 CP does not say there is no offence. It declares certain relatives exempt from criminal liability and subject only to civil liability for property offences committed against each other, provided there is no violence or intimidation and no abuse of the victim's vulnerability by reason of age or disability; and its second subsection warns that the exemption does not apply to outsiders who take part in the offence. The facts remain criminal in character, civil liability survives, and anyone who is not a relative answers in the ordinary way.

The limit that decides almost every family-business case is a different one: the exemption operates between relatives, not where the party harmed is the company. If the charge was borne by the company's profit and loss account, the injured party is the company and Art. 268 CP does not apply, however many of the shareholders are siblings. Hence the first task is not to argue the merits but to determine which estate each euro came out of and at what date the family tie is established.

What to do (and what not to do) before answering the prosecution

• Establish the family tie and that it subsisted at the material time. Civil Registry certificates, the family record book or the adoption decision and, for relatives by affinity in the first degree, evidence of living together. Where a marriage is involved, the date of the de facto separation or of the petition decides whether the provision applies, and the burden falls on whoever invokes the exemption.
• Determine the estate that was harmed before anything else. This is accounting work: which account each disposal came out of, how it was recorded and in whose profit and loss account it ended up. Whether Art. 268 CP is decisive or irrelevant turns on that.
• Reconstruct the legal basis for each disposal. The shareholders' resolution approving the remuneration, the provision in the articles for the office, a lease or services contract, a properly recorded current account between shareholder and company. The problem is rarely that the resolution was missing, but that nobody documented it at the time.
• Do not reconstruct minutes or "tidy up" the accounts now. Drawing up today a set of minutes that was never taken then is the shortest route to a new front. Document what exists, with its real date, and explain what is missing.
• Do not return sums without a paper trail. Repair can operate as a mitigating circumstance under Art. 21.5 CP, but only where it is done through a channel that records what is being returned and on what basis; an informal repayment later reads as an admission.
• Do not make a statement without having examined the prosecution and the documents filed with it. Art. 118.1 LECrim gives you the right to examine the proceedings before your statement and to remain silent; Art. 775 LECrim, a private conference with your lawyer before and after it.

Art. 268 CP: Exemption from Punishment, not Absence of Offence

The provision declares “exempt from criminal liability and subject only to civil liability” a closed circle of relatives “for the property offences they cause to one another”, provided there is no “violence or intimidation, or abuse of the victim's vulnerability, whether by reason of age or because the victim is a person with a disability”. The wording is deliberate: the legislator does not say the conduct ceases to be an offence, but that it will not be punished. This is an absolutory excuse, not a ground excluding the offence: the conduct remains typical, unlawful and culpable, and only the penalty falls away, so that criminal proceedings do not arbitrate economic disagreements inside a family.

Two consequences follow. First, civil liability survives intact: Art. 109 CP requires compensation for the loss caused by an act described by law as an offence, and the injured party keeps the restitutionary claim. Second, the exemption is strictly personal: Art. 268.2 CP provides that “this provision does not apply to outsiders who take part in the offence”, so the adviser or the non-family shareholder answers as an instigator or necessary accomplice (Art. 28 CP) or as an accessory (Art. 29 CP) even where the relative goes unpunished. And it operates act by act: if the account also contains a documentary forgery or a corporate offence, the proceedings continue on those.

The Four Limits that Decide these Cases

1. The list of relatives is closed. Art. 268.1 CP names spouses, ascendants, descendants and siblings “by nature or by adoption”, and “relatives by affinity in the first degree if they live together”. Nothing else. In a second- or third-generation family company, much of the shareholder body falls outside that wording: brothers- and sisters-in-law, relatives by affinity in the second degree, and also uncles, aunts, nephews, nieces and cousins. The unmarried partner does not appear in the text either. The result is asymmetric: on identical facts, some are covered and others are not.

2. Between spouses, the bond must be live. The exemption reaches spouses “who are not legally separated or separated in fact, or engaged in judicial proceedings for separation, divorce or annulment of their marriage”: a de facto separation or pending matrimonial proceedings are enough for it to lapse. Since a shareholder's marital breakdown often coincides with the corporate dispute, the date of the acts and that of the separation or petition become evidence of the first order.

3. “Property offences” is not the same as economic crime generally. Within the exemption fall the provisions protecting the relative's individual assets: theft under Art. 234 CP, fraud under Arts. 248 and 249 CP, unfair administration under Art. 252 CP, misappropriation under Art. 253 CP and criminal damage under Art. 263 CP. Outside it fall the corporate offences of Arts. 290 to 294 CP, whose protected interest goes beyond the shareholder's own assets and extends to the sound functioning of the entity and to those dealing with it in the market. Also outside are documentary forgeries —Art. 392 CP punishes forgery by a private individual in a public, official or commercial document with six months to three years in prison and a fine of six to twelve months— and the tax offence of Art. 305 CP: neither public faith nor the tax authority is the relative's property.

4. Abuse of vulnerability switches the exemption off. The provision requires that there be no abuse of the victim's vulnerability “whether by reason of age or because the victim is a person with a disability”. This is the limit with the widest reach here: the elderly founder, with incipient cognitive decline, whose general powers of attorney are used by one of the children fits squarely within it.

Who Is Harmed: the Relative or the Company

This is the distinction that resolves most sibling prosecutions. Art. 268 CP requires the offences to be caused “to one another”: the owner of the assets diminished must be the relative. Where what has been depleted is the company's assets, the injured party is a legal person distinct from its shareholders, and the exemption does not apply even if the share capital is wholly family-owned: relatives owning the shares does not turn corporate assets into family assets.

Two further provisions complete the picture. Art. 297 CP defines a company, for the purposes of the chapter, as “any cooperative, savings bank, mutual society, financial or credit institution, foundation, commercial company or any other entity of a similar nature which, in pursuit of its objects, participates on a permanent basis in the market”. And Art. 31 CP provides that anyone acting as a de facto or de jure director of a legal person “shall be personally liable, even though the conditions, qualities or relationships required by the relevant offence are not present in them”, provided they are present in the entity represented: that is how the de facto director answers, common where the retired founder or the child who “runs the business” acts without a registered appointment.

The rule works in reverse too: where a relative administers another relative's personal assets —general powers over a father's accounts, a sibling's private properties— and that administration causes loss, the injured party is indeed the relative and the exemption takes effect. The boundary is drawn not by the family bond but by ownership of what was taken.

Recurring Conduct and Its Characterisation

Unapproved remuneration and personal expenses charged to the company are the most disputed items. Art. 252 CP punishes those who, having powers to administer another's assets, “breach them by exceeding those powers and thereby cause loss to the assets administered”, with the penalties of Art. 248 CP —six months to three years in prison— or those of Art. 250 CP. That cross-reference matters: Art. 250.1 CP raises the penalty to one to six years in prison and a fine of six to twelve months where the value defrauded exceeds 50,000 euros or the offence is “committed by abusing the personal relationship existing between victim and defrauder”, and Art. 250.2 CP imposes four to eight years in prison and a fine of twelve to twenty-four months above 250,000 euros. Hence a paradox that defines these cases: the very family bond that might exempt in one scenario aggravates in another. The offence is examined in our article on Art. 252 CP and unfair administration.

Disposing of company or family assets after a succession is dealt with under Art. 253 CP, which punishes with the penalties of Art. 248 CP or, as the case may be, of Art. 250 CP those who, to another's detriment, appropriate money, effects, securities or any other movable property received on deposit, commission or safekeeping, “or entrusted to them under any other title creating an obligation to deliver or return them”. What is decisive is not possession, peaceful for years, but the moment it turns into disposal as owner.

Accounts that do not reflect the true position engage Art. 290 CP, which punishes de facto or de jure directors who “falsify the annual accounts or other documents that must reflect the legal or economic position of the entity, in a manner apt to cause economic loss to it, to any of its shareholders, or to a third party”, with one to three years in prison and a fine of six to twelve months, in the upper half “if the economic loss is actually caused”. It is set out in our article on false accounts under Art. 290 CP.

Abusive resolutions imposed by the family majority fall under Art. 291 CP: those who, “taking advantage of their majority position in the general meeting or the management body”, impose abusive resolutions for their own or another's gain, to the detriment of the other shareholders and “without benefit to the company”, incur six months to three years in prison or a fine of one to three times the benefit obtained. Art. 292 CP applies “the same penalty as the preceding article” to a harmful resolution adopted by a fictitious majority, obtained through abuse of a blank signature or improper allocation of voting rights. The line between the merely challengeable resolution and the criminal one is examined in our article on abusive and harmful shareholder resolutions.

Blocking the right to information of the sibling excluded from management fits Art. 293 CP, which punishes directors who “without lawful cause deny or prevent a shareholder from exercising the rights of information, participation in management or control of the company's activity, or pre-emptive subscription of shares recognised by law”, with a fine of six to twelve months: the most common entry point to a succession war and the least heavily punished provision in the chapter. It is developed in our article on the denial of shareholder rights.

Inheritance, Succession and Confusion of Assets

The founder's death is the point of greatest litigation, for a structural reason: until then three sets of assets coexisted without conflict —the deceased's own, the company's and the heirs'— and the succession forces them apart all at once. Properties used without title, undocumented loans between founder and company, and accounts several family members could draw on all surface together.

Onto that ground are layered civil roles with duties of their own. The executor and the estate-partition accountant administer or divide other people's assets by appointment of the testator or of the court; until the estate is divided, co-heirs hold a community over the estate as a whole, not exclusive ownership of particular assets. The boundary with the criminal law is drawn not by the disagreement but by title: division of the estate, collation and division of common property are civil matters, however bitter and however long they run. Only when someone holding assets under a title obliging them to return the assets definitively absorbs them, or someone administering exceeds their powers and causes loss, is the line of Arts. 252 and 253 CP crossed.

One point is often forgotten: between sibling co-heirs the strictly property element may be covered by Art. 268 CP, but not if the asset taken belonged to the company, if an heir outside the statutory circle was involved, or if the disposal was effected through false documents.

Prosecution, Limitation and the Reverse Risk

Art. 296.1 CP provides that the acts described in the chapter on corporate offences “may be prosecuted only upon complaint by the aggrieved person or their legal representative”, and allows the Public Prosecutor to complain where that person is a minor, a person with a disability in need of special protection, or a helpless person; subsection 2 dispenses with the requirement “where the commission of the offence affects the general interest or a plurality of persons”. The consequence is twofold: without the aggrieved shareholder's complaint there is no case under Arts. 290 to 294 CP, whereas that requirement does not reach Arts. 252 and 253 CP, which sit in a different chapter and are prosecutable of the court's own motion.

Limitation is governed by Art. 131 CP, which sets five years for offences below the higher thresholds and ten “where the maximum penalty laid down by law is imprisonment or disqualification of more than five years and not exceeding ten”. Subsection 2 adds the rule that causes most confusion: where the penalty is composite, regard is had “to the one requiring the longest time for limitation”. Applied to the corporate chapter it lengthens nothing, because none of Arts. 290 to 294 CP carries disqualification: all become time-barred after five years. The shift comes by another route: where unfair administration or misappropriation are punished with the penalties of Art. 250 CP —one to six years in prison, or four to eight under its subsection 2— the period becomes ten years. Art. 132.1 CP counts from the day the offence was committed and, in a continuing offence, from the last act, which matters because periodic withdrawals are usually characterised under Art. 74 CP, whose subsection 2 requires regard to the total loss caused.

A private prosecution is sometimes used as negotiating leverage, and that decision calls for weighing the reverse risk. Art. 456.1 CP punishes those who, “knowing them to be false or with reckless disregard for the truth”, impute to a person acts which, if true, would constitute a criminal offence, before a judicial or administrative officer under a duty to investigate them: six months to two years in prison and a fine of twelve to twenty-four months where a serious offence is imputed, a fine of twelve to twenty-four months for a less serious one and a fine of three to six months for a minor one. Art. 457 CP punishes with a fine of six to twelve months simulating an offence or reporting a non-existent one so as to trigger proceedings. Art. 456.2 CP imposes caution: no action may be taken against the complainant except after a final judgment or a final order of dismissal or discontinuance, so a discontinuance is not a false accusation. And because the conflict runs in parallel through the commercial courts, what is argued in one set of proceedings ends up being read in the other; a deadlock between two family branches raises its own problems, examined in our article on the deadlocked 50/50 company.

Lines of Defence

The first line is to establish the family bond and that it was live on the date of the acts. The burden lies on whoever invokes it: civil registry certificates, the family record book, the adoption order or, for relatives by affinity in the first degree, evidence of cohabitation; and where a marriage is involved, the date of the de facto separation or of the petition decides whether the provision applies. The second is to identify the real injured party, which calls for accounting analysis: if the charge was borne by the company's profit and loss account, the injured party is the company; if it was taken from a personal account, it is the relative.

The third is consent or prolonged tolerance by the other family shareholders: annual accounts approved without reservation over successive years, remuneration known and never questioned. That is not an unlimited authorisation, but it bears on the loss required by the offence and on intent. The fourth is the existence of a legal title for the disposal: the resolution approving the remuneration, the provision in the articles, the lease or services contract, the shareholder current account duly recorded. The problem is rarely that no agreement existed, but that nobody documented it; reconstructing it from minutes and the accounts is defence work.

The fifth is the absence of intent, through Art. 14 CP: an unavoidable mistake as to a fact constituting the offence excludes criminal liability and, if avoidable, the offence is punished “where appropriate, as negligent”, which here means impunity because no negligent form is provided for; an unavoidable mistake as to unlawfulness likewise excludes liability and, if avoidable, the penalty is reduced by one or two degrees (Art. 14.3 CP). The sixth is minimum intervention: there are commercial remedies of their own for management disagreements. And the seventh is reparation, the mitigating circumstance of Art. 21.5 CP where the offender proceeds “to repair the harm caused to the victim, or to reduce its effects” before the trial hearing; the mitigation of Art. 21.6 CP for extraordinary and undue delay may be added. Civil liability under Arts. 109 and 116 CP survives in any event.

Prevention: Documenting Before the Conflict

These cases share a starting point: decisions sound in substance that nobody formalised while trust made formality seem unnecessary. Prevention means documenting what was already being done. The family protocol orders access to management, the entry of later generations, dividend policy and the exit and valuation of shareholdings: it does not prevent a prosecution, but it shows that internal channels and known rules existed.

Four practical measures sit alongside it. Documented remuneration for the director, with provision in the articles, a resolution of the general meeting and accounting support, removes one of the most frequent complaints. Strict separation of assets, with clear titles of use and consideration, avoids the confusion nobody can later undo. Formal approval of related-party transactions, with abstention by the interested shareholder, a valuation report and a record in the minutes, turns a suspicious operation into a traceable decision. And periodic information to the non-managing shareholder switches off Art. 293 CP. None of this guarantees the conflict will not end up in court, but it narrows the ambiguity in which allegations thrive.