Misappropriation (Art. 253 Penal Code): Defense Keys

Misappropriation is one of the most frequent property offenses in the workplace and corporate settings. As criminal lawyers in misappropriation, we explain its keys.

What Article 253 Penal Code Punishes

Misappropriation is committed by anyone who, having received money, securities or any movable property on deposit, commission, custody or under any other title creating a duty to deliver or return it, keeps it to the harm of another. The decisive element is that the initial possession was lawful: the offense arises when the duty to return is broken.

Applicable Penalties

Article 253 refers to the penalties for fraud: 6 months to 3 years in prison (Art. 249 Penal Code). In the aggravated cases (Art. 250 Penal Code) —including where the amount exceeds 50,000 euros— the penalty rises to 1 to 6 years in prison and a fine.

Differences with Related Offenses

It is distinguished from theft (where there is no prior delivery), from fraud (where deceit precedes delivery) and from unfair administration (Art. 252 Penal Code), which punishes the abuse of powers to manage another person assets. The key is the title of receipt and the moment of intent.

Defense Strategy

The defense examines whether there was genuine intent to appropriate or merely a civil breach, whether there was return or deposit of what was owed, and the correct determination of the amount, which marks the threshold of the aggravated offense.