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 reconducted to the classical types 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 kinship absolutory excuse 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 can reach prison from 6 months to 6 years in its aggravated form; account falsification (Art. 290) carries 1 to 3 years' prison and fine; abusive and harmful resolutions (Arts. 291-292) sanction with 6 months to 3 years; denial of information rights (Art. 293) imposes 6 to 12 months' fine; and inspection obstruction (Art. 294) carries fine and disqualification. To custodial penalties are added disqualification from managing companies for up to 6 years (Art. 297) and the civil liability to repair the damage caused to family and corporate assets, which usually reaches very high figures given the patrimonial complexity of consolidated family businesses.

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 a criminal process between relatives entails.