Criminal Lawyers for Harmful Corporate Agreements

Harmful corporate agreements (acuerdos lesivos, Articles 291-292 Criminal Code) criminalize the imposition of abusive agreements by majority shareholders or administrators that harm the company, its partners, or third parties. These provisions protect minority shareholders from majority abuse and ensure corporate decisions serve the company's interests rather than the personal benefit of controlling parties.

Legal Framework: Articles 291-292 CP

Article 291 punishes anyone who, using a fraudulent majority (obtained through abuse of power, manipulation of votes, or preventing legitimate exercise of voting rights), imposes agreements known to be harmful to the company or its partners. Article 292 punishes imposing harmful agreements by taking advantage of a majority position (even without fraud). The protected interest is the proper functioning of corporate life and the rights of the minority against the abuse of those who control the company.

Elements of the Offense

Three elements must concur. The active subject is qualified: shareholders or administrators who control the decision. The conduct is the imposition of an agreement through a fictitious or fraudulent majority, or through the abuse of a real majority position. And the agreement must be harmful to the company, its partners or third parties, with the imposer's knowledge of that harm. The dividing line —between a legitimate, if unwelcome, business decision and a criminal abuse— is precisely where these cases are decided.

Defense Strategies

Our defense (for accused administrators) focuses on: proving the agreement served a legitimate business purpose (Business Judgment Rule); demonstrating all shareholders had proper notice and opportunity to participate; establishing the decision was based on reasonable business criteria and expert advice; and arguing the alleged harm is a normal business risk, not criminal misconduct. For victimized shareholders, we pursue criminal complaints combined with corporate governance remedies.

Criminal Consequences

The basic offence (Art. 292 CP) carries prison of 6 months to 3 years or a fine of the amount to triple the benefit obtained. Beyond the penalty, a conviction entails the civil liability for the harm caused to the company or the minority, and frequently runs in parallel with the corporate-law challenge to the agreement itself. Because the criminal and corporate avenues interact, the strategy —whether in defence or in prosecution— must coordinate both fronts.

The Procedural Requirement of Article 296 CP

The offence under Article 292 CP is not, as a general rule, prosecutable on the court's own initiative. Article 296 CP imposes a specific procedural condition: proceedings may only be commenced upon a prior complaint (denuncia) filed by the aggrieved party or its legal representative. This means that the Public Prosecutor cannot ordinarily set the criminal machinery in motion on its own when the only interest affected is the company's assets or the position of a particular shareholder. This requirement turns the complainant's standing into a procedural prerequisite of the first order, one the defence must scrutinise from the very outset of the case.

The provision itself contains a significant exception: no complaint is required where the commission of the offence affects general interests or a plurality of persons. The scope of this clause is a matter of doctrinal debate and frequently becomes one of the central axes of the procedural discussion, since it marks the boundary between a semi-public offence and one prosecutable ex officio. The defence may argue that the harm is confined to a single shareholder or to the company, with no impact on an indeterminate plurality of affected parties, thereby ruling out the operation of the exception.

In practical terms, the absence of a valid complaint from a person holding the status of aggrieved party, or one filed by someone lacking standing, may support the dismissal or staying of the proceedings. It is worth verifying who files the complaint, in what capacity, and whether the asserted representation is duly established under the applicable company law. A defect in this prerequisite is not a minor formality but a substantive obstacle to the continuation of the case, which must be raised at the appropriate procedural stage.

Competent Court and Stages of the Criminal Proceedings

The trial court is determined by the abstract penalty attached to the offence. Article 292 CP provides for imprisonment of six months to three years or a fine of one to three times the benefit obtained. As the threshold of five years' imprisonment is not exceeded, jurisdiction to try the case lies with the Criminal Court (Juzgado de lo Penal) of the competent judicial district, following investigation before the Investigating Court. These corporate offences are not to be assigned to the National High Court (Audiencia Nacional), whose objective jurisdiction is strictly defined and does not, as an ordinary matter, encompass the imposition of harmful resolutions under Article 292 CP.

The proceedings pass through the stages typical of the abbreviated procedure: an investigation stage aimed at clarifying the facts and delimiting liability; an intermediate stage, where the opening of the oral trial or a dismissal is decided; and the oral trial before the trial court. At each of these the defence has distinct instruments at its disposal, from challenging investigative measures during the inquiry to requesting a definitive or provisional stay at the intermediate stage where the evidence proves insufficient or procedural defects are present.

Correctly identifying the competent court has practical consequences that go beyond the academic: it conditions time limits, available appeals, and the rules governing evidence. An erroneous attribution of jurisdiction may give rise to nullities and delays. For that reason, examining objective and territorial jurisdiction is one of the first checks the defence must carry out, together with verifying compliance with the procedural condition under Article 296 CP.

Limitation Periods for the Offence

Limitation is governed by Article 131 CP, which takes as its reference the maximum penalty attached to the offence. The imposition of harmful resolutions under Article 292 CP is punishable by imprisonment of six months to three years or a fine of one to three times the benefit. As this is a less serious offence whose maximum penalty does not exceed five years, the applicable limitation period is five years. There is no three-year limitation bracket for this offence, so any calculation must start from the five-year period.

If, in a particular case, the conduct were to carry a penalty whose maximum exceeded five years' imprisonment, owing to attendant circumstances or the application of connected offences, the limitation period would rise to ten years under the general rule of Article 131 CP. The applicable period therefore depends on the maximum penalty legally provided for the conduct actually charged, not on the penalty that might in the abstract appear most likely.

Calculating the period and identifying the acts capable of interrupting it are technical questions that can prove decisive. The date of commission, any continuing nature of the conduct, and the procedural acts directed against the alleged offender all bear on the calculation. The defence must rigorously assess whether the criminal action was already time-barred at the moment it was exercised, since limitation, once established, extinguishes criminal liability and constitutes grounds for dismissal or acquittal.

Parallel Company-Law Remedies and Repair of the Harm

The criminal route of Article 292 CP does not exhaust the tools available against a harmful resolution: company law offers its own instruments running in parallel. The corporate liability action (acción social de responsabilidad) allows directors to be required to make good the damage caused to the company's assets, while the challenge to corporate resolutions (impugnación de acuerdos) enables resolutions contrary to the law, the bylaws, or the corporate interest to be contested before the civil courts. The existence of these routes is relevant to the defence strategy, since the dispute may fit more appropriately within the commercial jurisdiction than the criminal one where the elements of the offence are not present.

Within the framework of the legal entity, it is worth examining the company's potential criminal liability under Article 31 bis CP and the role of compliance programmes. A suitable crime-prevention model, adopted and effectively implemented, may operate as an element of defence against the entity's imputation. Analysing the corporate governance architecture and internal controls forms part of the assessment the defence carries out in relation both to the natural persons involved and, where applicable, to the company itself.

Where the facts are established, repairing the harm caused to the company or the shareholder may carry mitigating weight. The mitigating circumstance of repairing the damage under Article 21.5 CP, together with the possibility of reaching a guilty-plea agreement (conformidad) on the terms provided by law, are options to be weighed in light of the client's interests and the circumstances of the case. The possible suspension of the execution of a custodial sentence, subject to the general requirements of the Criminal Code, completes the range of solutions that may be considered in a strategy aimed at minimising the consequences.