Corporate Crimes in Family Business

The corporate offences within the family business are not classified as an autonomous category in the Spanish Criminal Code, but they present singularities that turn them into a specific legal phenomenon. They are redirected to the ordinary offences of Arts. 290 to 297 CP (account falsification, unfair administration, denial of information rights, imposition of abusive resolutions, inspection obstruction), although they are complicated by the confusion between family and business assets, family protocols, prior emotional relationships and the possible application of the family exemption from criminal liability under Art. 268 CP. Consolidated case-law has held that this excuse does not extend to corporate offences because the protected legal interest is the corporate order and not exclusively the individual family patrimony.

The typical modalities we recurrently see in the family context are significant. The squeeze-out of the minority partner through systematic non-distribution of dividends, disproportionate compensation to the administering sibling and related-party transactions with companies of the family environment. The family black box: discovery after the founder's death of diverted assets, unrecorded loans, properties under family figurehead names or opaque accounts. The succession war between siblings for management after the founder's retirement or death, frequently articulated through informational exclusions and defective notices. The abusive related-party transactions: rentals to relatives below market, contracting services from companies controlled by children at inflated prices, loans without actual repayment. And the corporate succession conflicts when legitimate heirs coexist with working partners.

The penalties depend on the specific type applied. Unfair administration under Art. 252 CP carries the penalties of Art. 248 CP (six months to three years' imprisonment) or, where the circumstances of Art. 250 CP apply, one to six years' imprisonment and a fine of six to twelve months, rising to four to eight years and a fine of twelve to twenty-four months where the amount defrauded exceeds 250,000 euros; false accounts (Art. 290 CP) carry one to three years' imprisonment and a fine of six to twelve months, in the upper half if the loss actually occurs; abusive and harmful resolutions (Arts. 291-292 CP), six months to three years' imprisonment or a fine of one to three times the profit obtained; denial of information rights (Art. 293 CP), a fine of six to twelve months; and obstruction of supervision or inspection (Art. 294 CP), six months to three years' imprisonment or a fine of twelve to twenty-four months, with the court also able to order the measures of Art. 129 CP. Art. 297 CP imposes no penalty: it defines what counts as a company for these purposes, requiring the entity to take part in the market on a permanent basis. Alongside the penalty comes civil liability to repair the loss caused to family and corporate assets.

The technical defence and negotiating strategy in family businesses have essential distinctive features. First, the initial criminal vs. commercial evaluation: not every family corporate conflict should be judicialised criminally; when intent and harmful capacity exist, the criminal route of Arts. 290-297 CP is legitimate, but when there is mere management disagreement, commercial actions (resolution challenge, social and individual liability actions, separation or exclusion of partners, dissolution for paralysis) are more appropriate and less destructive. Second, the professional discretion and resort to specialised family mediation to preserve emotional relationships. Third, the analysis of the family protocol, shareholders' agreements and corporate bylaws to detect exit clauses, objective valuation, drag/tag-along or corporate arbitration. Fourth, the articulation of precautionary measures: judicial administrator, account intervention, preventive annotation, prohibition of disposition acts on critical assets. Fifth, the negotiation of orderly exit through purchase-sale of shares at fair value, company spin-off, segregation of business units or agreed dissolution.

In current forensic practice we observe an intensification of conflicts in family businesses, especially linked to successions due to founder's death or retirement, partner divorces under community property regime, incorporation of the second and third generation with different expectations, and tensions between working and capital family partners. Act 5/2021 on long-term shareholder engagement, Crea y Crece Act 18/2022, Organic Law 1/2025 on Justice Service Efficiency and recent commercial case-law on the administrator's fiduciary duties (Arts. 225-232 LSC) offer valuable tools to articulate solutions. At Alonso Sala, we approach each family corporate conflict with discretion, a multidisciplinary criminal-commercial-civil-tax team, strategic initial evaluation and coordinated negotiation aimed at preserving the family business assets, protecting the client's rights and, where possible, avoiding the reputational and emotional destruction that criminal proceedings between relatives entail.