Criminal Lawyers in Abusive Agreements

The offence of imposition of abusive resolutions, regulated in Art. 291 of the Spanish Criminal Code, is the minority partner's criminal trench against the controlling partner's or group's steamroller. It protects the company's interest and the assets of non-dominant partners against decisions adopted in shareholders' meetings or boards that, lacking any benefit for the company, deliberately harm those not holding the majority. Art. 291 requires all of these elements: taking advantage of a majority position, imposition of an abusive resolution without corporate benefit, a profit motive (own or third-party) and harm to the other partners. As criminal lawyers specialising in corporate offences, we articulate the dual criminal-commercial route to rebalance the minority's negotiating position.

Typical Forms of Majority Abuse

The typical modalities we see in practice are recurring. The systematic policy of non-distribution of dividends: the majority accumulates reserves year after year despite recurring profits, suffocating the minority to force them to sell their stake at depressed prices, while administrators self-award disproportionate compensation. "Accordion" capital increases (reduction to zero and simultaneous increase) designed to dilute the troublesome partner who cannot attend. Related-party transactions with companies of the controlling environment under adverse market conditions for the company (overprices, unnecessary services, loans at non-market rates). Disproportionate compensation to the controlling administrator acting as covert profit distribution. And freeze-outs through systematic refusal of information, exclusion from meetings or defective notices breaching the right of attendance, conduct that fits Art. 293 CP rather than Art. 291.

Penalties and Concurrent Actions

The penalties under Art. 291 CP comprise prison from 6 months to 3 years or fine of one to three times the benefit obtained, alternative graduated by the judge according to gravity. Art. 291 carries no special disqualification of its own: it can only be imposed as an accessory penalty, for the duration of the sentence, where the office was directly connected with the offence (Art. 56.1.3 CP). Added to the penalty is civil liability for the damages caused to the minority's assets and, where applicable, to the company itself. When abusive resolutions concur with other corporate offences (Art. 290 CP on false accounts, Art. 293 CP on denial of information rights, Art. 252 CP on unfair administration), penalties may accumulate in real concurrence if they are separate acts (Arts. 73 and 76 CP). Conviction under Art. 291 CP usually coexists with the commercial challenge action against the resolutions (Arts. 204-208 LSC) and with the social and individual liability actions (Arts. 238-241 LSC).

Defence and Prosecution

The technical defence and prosecution strategy are articulated on several lines. When representing the harmed partner, we build the proof of prevailing position and profit motive through forensic accounting expertise quantifying the damage, cross-cutting analysis of compensation, undistributed dividends and related-party transactions; we collect emails, minutes and documents evidencing intent; and we articulate valuation expertise of the minority stake to support compensation. When defending the controlling partner, we articulate the existence of social interest: real need for capitalisation for investments or expansion, prudential financial policy recommended by external auditor, absence of distributable profit due to treasury demands, compensation approved by meeting and proportional to actual functions. We challenge profit motive or harm intent through expert evidence proving the economic rationality of the challenged resolution.

Current Forensic Practice

In current forensic practice we observe sustained growth in criminal proceedings for abusive resolutions, especially in closed family companies after inheritances, divorces or generational changes, and in tech investees with fragmented cap tables after several investment rounds. Act 5/2021 on long-term shareholder engagement and consolidated case-law on fiduciary disloyalty and director's duty of care (Arts. 225-232 LSC) have reinforced minority-protection mechanisms. At Alonso Sala, we approach each corporate conflict as a multidimensional operation: we map economic flows, audit majority decisions, assess in penalty terms the typifiable conducts and build a tiered strategy with clear negotiation milestones. The aim is not always the criminal conviction —rarely the client's priority—, but to rebalance the negotiating position to reach an orderly exit with fair stake valuation, recapitalisation, separation of partners or dissolution.