Criminal Lawyers for Unfair Asset Management

Unfair asset management (administración desleal), governed by Article 252 of the Criminal Code, is one of the most relevant offences against property and the socio-economic order in the modern corporate and commercial field. It punishes anyone who, having powers to manage another's assets arising from the law, entrusted by an authority or assumed through a legal transaction, breaches those powers by exceeding their exercise and thereby causes harm to the managed estate. It is a technically complex offence protecting the trust inherent in the management of another's assets.

Legal Framework: Article 252 CP

Article 252 CP, as worded by Organic Law 1/2015, clearly separated unfair management from misappropriation (which moved to Article 253 CP). The provision punishes whoever, having powers to manage another's assets arising from the law, entrusted by an authority or assumed through a legal transaction, breaches them by exceeding their exercise and thereby causes harm to the managed estate, with the penalties of Article 248 CP (imprisonment of 6 months to 3 years) or, where applicable, those of Article 250 CP (1 to 6 years) when aggravating circumstances concur, such as an amount over €50,000.

Protected Interest and Elements

The protected interest is another's estate in its dimension as an entrusted management relationship. The elements are: (1) the existence of a power of management over another's assets, arising from the law (guardianship, curatorship), from authority (judicial administration) or from a legal transaction (mandate, power of attorney, corporate management); (2) breach of the powers by excess in their exercise; (3) actual or potential harm to the managed estate; and (4) intent as to the foregoing. The subjective element is debated: the prevailing view requires direct intent, although part of the case law admits dolus eventualis.

Difference from Misappropriation (Art. 253 CP)

The distinction between unfair management and misappropriation is decisive. In unfair management, the perpetrator improperly manages another's assets without necessarily making them their own. In misappropriation, the perpetrator incorporates into their own estate the other's asset definitively or denies having received it (animus rem sibi habendi). The boundary can be subtle: case law has developed criteria to tell the two apart, but in practice borderline cases arise where the classification is open to debate.

Corporate Unfair Management

The most frequent field of application of Article 252 CP is the corporate one: directors who manage company assets against the corporate interest, for their own benefit or that of third parties, through unauthorised related-party transactions, abusive self-dealing, concealed remuneration, transfers to shell companies, disproportionate contracting or the use of corporate assets for purposes unrelated to the corporate object. The defence must carefully analyse whether the elements of the offence are present and the possible application of specific company-law remedies (the corporate liability action, the challenge of corporate resolutions).

Evidential Issues

Proving unfair management requires technical accounting and economic analysis. It is common for accounting expert evidence to be produced by both the prosecution and the defence: analysis of the economic flows, valuation of the questioned transactions at market prices, identification of the quantified harm, comparison with equivalent transactions and documentary reconstruction. The defence can contrast the official expert reports with independent expert evidence offering an alternative interpretation of the economic facts.

Defence Strategy

We build the defence around: discussion of the unfair character of the questioned transactions; analysis of the excess over the powers conferred; accounting expert evidence contesting the harm attributed; discussion of intent and possible mistake as to the limits of the power; discussion of the classification between unfair management and misappropriation; analysis of the amount of the harm to discuss the aggravating factors; assessment of mitigating factors (reparation, undue delay, cooperation); and coordination with parallel company-law proceedings. We act before the Investigation Sections of the Courts of Instance (Sección de Instrucción; formerly the Investigating Courts), the Criminal Sections of the Courts of Instance (Sección de lo Penal; formerly the Criminal Courts), the Provincial Courts and, in the cases set out in Article 65.1 of the Judiciary Act (LOPJ), before the National Court.

The Procedural Requirement of Article 296 CP: No Complaint, No Proceedings

The corporate offences of Articles 290 to 294 of the Spanish Criminal Code are subject to a prosecutability requirement set out in Article 296 CP: they can only be prosecuted upon a complaint by the aggrieved party or their legal representative. Indications of wrongdoing are not enough; the person who has suffered the harm must formally set the criminal machinery in motion. This procedural requirement is one of the most underrated and yet most effective defence points in the early stages of proceedings. It does not, however, extend to disloyal administration under Article 252, even when committed within a company: that is a public offence, prosecutable ex officio.

Article 296 itself contains an exception: no complaint is required where the commission of the offence affects the general interest or a plurality of persons. Determining whether that exception applies is a significant legal question, because the continuation of proceedings despite the lack of a complaint by the directly aggrieved party depends on it. The prosecution will tend to invoke the general interest to sidestep the requirement; the defence, to construe it strictly, recalling that mere harm to a company and its shareholders does not automatically amount to an indeterminate plurality of victims.

From the firm's perspective, we first examine whether the complaint comes from a party with standing, whether it was filed in time and whether it meets the formal requirements. The absence or defectiveness of the complaint, where the general-interest exception does not apply, may support a request for dismissal. It is worth noting, moreover, that this requirement depends on the classification of the facts: if they are characterised as disloyal administration under Article 252 or as misappropriation under Article 253, it does not apply, since neither offence belongs to the chapter on corporate offences.

Jurisdiction and Procedural Stages: the Criminal Section (formerly the Criminal Court), Not the National Court

A common misconception is that a disloyal administration matter with economic significance must be heard before the Audiencia Nacional (National Court). That is not the case. The investigation falls to the Investigation Section of the place of commission, and the trial is assigned to the Sección de lo Penal (Criminal Section) where the maximum penalty does not exceed five years' imprisonment, or to the Provincial Court (Audiencia Provincial) where it does. The National Court only hears them in the cases exhaustively listed in Article 65.1 of the Judiciary Act (LOPJ), for instance frauds with serious repercussions for the security of commercial dealings or the national economy, or harming a large number of people in the territory of more than one Provincial Court.

Proceedings generally follow the abbreviated procedure (procedimiento abreviado). After the investigation phase —in which evidence is gathered, statements are taken and expert evidence is incorporated— the judge issues the order deciding whether to continue or dismiss. If proceedings continue, the prosecution and defence briefs are filed, the trial is held before the competent court and a judgment is delivered, which may be appealed. Each of these stages offers the defence concrete opportunities: to challenge the admission of evidence, to seek dismissal, to raise preliminary objections and to marshal exculpatory evidence.

Correctly identifying the competent court and the procedural stage is not a mere formality. It conditions the deadlines, the available appeals and the strategy itself. We therefore analyse from the outset the characterisation on which the prosecution relies, the abstract penalty derived from it and, consequently, before which court the matter will ultimately be tried, preventing a mistaken allocation of jurisdiction from distorting the defence.

Limitation of the Offence (Art. 131 CP): Applicable Time Limits

Limitation extinguishes criminal liability through the passage of time and is a defence that must be examined in every disloyal administration matter. The time limits in Article 131 of the Criminal Code are calculated according to the maximum penalty attached to the offence. Where that maximum penalty does not exceed five years —the basic offence under Article 252, punished with the penalties of Article 248, imprisonment of six months to three years— the offence is a less serious one and is subject to a five-year limitation period.

Where, by application of the aggravated sub-types of Article 250 to which Article 252 refers, the maximum penalty exceeds five years —Article 250 provides for imprisonment of one to six years, or four to eight under its subsection 2— the limitation period rises to ten years. It is essential to fix precisely the maximum penalty corresponding to the specific form charged, because the applicable period depends on that calculation. The defence must verify the prosecution's characterisation to prevent the application of a longer period than is legally due.

Time runs, as a general rule, from the day the offence was committed, subject to the particularities of result offences or continuing conduct. The period is interrupted when the proceedings are formally directed against the person under investigation, in the terms detailed in Article 132 CP. Reconstructing the chronology of the facts and of the procedural steps is therefore decisive: a disloyal administration whose facts are old may have become time-barred, and a finding of limitation leads to the closure of the case or to acquittal.

Parallel Commercial Remedies, Compliance and Mitigation by Reparation

The conflict underlying a disloyal administration charge usually also has a commercial dimension. The corporate liability action (acción social de responsabilidad) allows the company to claim from the director compensation for the harm caused to the company's assets, and the challenge to corporate resolutions (impugnación de acuerdos sociales) enables decisions taken in breach of the law or the bylaws to be contested. These civil and commercial avenues may run in parallel with the criminal proceedings and may even offer a route to resolving the conflict that shortens the course of the criminal action, especially where the reproach lies on the border between corporate breach and criminal wrongdoing.

Administración desleal under Article 252 does not carry an express clause extending criminal liability to the legal person; however, where other offences that do extend it concur in the corporate setting —such as fraud (Article 251 bis) or money laundering (Article 302)— the regime of Article 31 bis of the Criminal Code comes into play. The existence of a suitable compliance programme, implemented and supervised before the events, may operate as a circumstance that exempts or mitigates that liability. The defence must establish the genuine effectiveness of the organisation and control model, not merely its formal existence, because the courts assess how it actually functions.

At the level of the natural person, Article 21.5 CP provides for the mitigating circumstance of reparation of the harm where the defendant repairs or reduces the effects of the offence before the trial. Returning the sums or repairing the loss may carry significant weight in setting the penalty. To this is added the possibility of reaching a plea agreement (conformidad) that brings the proceedings to an early end on more favourable terms, as well as, where the legal requirements are met, the suspension of the enforcement of the custodial sentence. Each of these options is assessed in light of the circumstances of the specific case.