Criminal Lawyers in Unfair Administration

The offence of unfair administration, regulated in Art. 252 of the Spanish Criminal Code after the reform by Organic Law 1/2015, is the most sophisticated modality of economic offences against third-party assets managed under a fiduciary relationship. It protects the assets managed on behalf of another (commercial company, lying inheritance, separate estates, trust) against the abuse of administration powers. Consolidated Supreme Court case-law has precisified the contours of the type: it requires power to administer third-party assets, excess or abuse in the exercise of such powers and economic harm to the managed assets (if it does not exceed EUR 400, the penalty is a fine of 1 to 3 months, Art. 252.2). As criminal lawyers specialising in unfair administration, we articulate the dual technical-economic and procedural defence to neutralise charges or, in the case of a victim, recover the diverted assets.

Forms of Unfair Administration

The typical modalities are recurring in practice. The improper use of the corporate card for personal expenses (family meals, trips, clothing, home renovations) without supporting documentation or remuneration agreement. The abusive self-contracting with companies of the administrator's environment at off-market prices or for non-existent services. The granting of disproportionate compensation to the administrator without bylaw coverage or meeting approval (Art. 217 LSC and the so-called link doctrine of the civil courts). The granting of loans to partners or related parties without guarantees, without interest or without real repayment forecast. The sale of corporate assets to related persons at prices manifestly below market (asset stripping). And the diversion of business opportunities to companies controlled by the administrator or close associates.

Penalties and Concurrence

The penalties under Art. 252 CP comprise, in the basic type, prison from 6 months to 3 years (harm exceeding EUR 400, Art. 248 CP by reference); in its aggravated form (harm exceeding EUR 50,000, special severity, affecting basic-need goods, abuse of personal relationships, relevant value of the harm), prison from 1 to 6 years and fine; and where the harm exceeds EUR 250,000 or circumstance 1 of Art. 250.1 combines with circumstance 4, 5, 6 or 7, prison from 4 to 8 years and a fine of 12 to 24 months (Art. 250.2). The special disqualification from acting as a company director, which Art. 252 CP does not itself impose but which may be ordered as an accessory penalty (Art. 56.1.3 CP) where the office was directly connected with the offence and the judgment says so expressly, constitutes a severe professional-impact criminal complement. The reparative civil liability covers the restitution of the diverted amount plus accrued legal interest and can be enforced on the administrator's present and future personal assets. When the offence concurs with other types (account falsification, tax fraud, punishable insolvency, money laundering), the rules on concurrence of offences apply (real or instrumental, Arts. 73 to 77 CP).

Defence Strategy

The technical defence articulates several complementary lines. First, the Business Judgment Rule (Art. 226 LSC): the business decision adopted in good faith, with adequate information and according to procedure, is outside Criminal Law even if it produces losses or is technically wrong; the offence does not punish business risk or incompetence, but wilful abuse. Second, the remuneration coverage: bylaw documentation, meeting resolutions and senior-management contracts legitimising the challenged compensation. Third, the self-contracting dispensed by the general meeting (Art. 230 LSC) after full information and abstention of the affected party. Fourth, the effective delegation in officers and external advisors as a basis for the principle of trust and possible mistake of prohibition in the formal administrator. Fifth, the challenge of the evidentiary chain and the party economic expertise that recharacterises operations or modulates the quantified harm.

Current Forensic Practice

In current forensic practice we observe sustained growth in unfair-administration proceedings, especially linked to shareholder conflicts, changes of control in M&A operations where the buyer discovers deviations, culpable bankruptcy proceedings with adverse qualification section, investment funds discovering related operations after entering the cap table, and lying inheritances badly managed by designated administrators. Act 31/2014 on good corporate governance, Act 5/2021 on long-term shareholder engagement, Organic Law 1/2025 on Justice Service Efficiency and recent commercial case-law on the administrator's fiduciary duties (Arts. 225-232 LSC) have reinforced the sanctioning regime. At Alonso Sala, we tackle each file with a multidisciplinary criminal-commercial-economic team: we conduct forensic audit of the questioned operations, articulate economic expertise neutralising or modulating the charge, manage coordination with auditors and build a comprehensive defence protecting the charged administrator.