Misappropriation in the Workplace and Corporate Sphere
Criminal defence of employees, directors and partners accused of appropriating or diverting company funds or assets (Art. 253 CP).
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Misappropriation in the Company: Legal Framework
Misappropriation in the workplace and corporate sphere rests on Article 253 of the Criminal Code. It punishes the employee, director or partner who appropriates or diverts, for themselves or for a third party, money, funds or assets of the company that they had received in administration, custody or by reason of their position. As criminal defence lawyers specialising in offences against property, at Alonso Sala we defend workers and executives against this type of accusation, common in contexts of internal conflict or accounts review.
The defining feature is that the assets reach the person lawfully: through their post, a power of management or a relationship of trust. There is no initial taking. The offence is completed when those funds or assets, received for one purpose, are diverted to a destination of their own or one unrelated to what was agreed. Hence the importance of delimiting the exact scope of the powers conferred on the employee or director.
Appropriation and Diversion in the Company
The offence covers two forms of conduct. Appropriation in the strict sense consists of permanently incorporating company assets into one's own estate (keeping cash, merchandise or customer payments). Diversion consists of giving the funds a destination other than the intended one, even without permanent enrichment: using company money for private purposes or diverting it from its proper aim. Both forms require that the assets had been received by reason of the position or role performed.
Typical scenarios include the cashier who withholds payments, the salesperson who does not bank what was collected, the director who uses company funds for personal expenses or the partner who disposes of common assets for their exclusive benefit. In many of these cases an accounting expert report is decisive in distinguishing wilful diversion from a mere management irregularity.
Aggravated Offence and Concurrence
The basic penalty refers to Article 249 of the Criminal Code: prison of 6 months to 3 years, depending on the amount and the harm caused. The conduct shifts to the aggravated offence of Article 250 of the Criminal Code —prison of 1 to 6 years and a fine— when the amount appropriated exceeds €50,000, when the act is especially serious, or when there is abuse of personal relationships between victim and perpetrator, a common circumstance within the company given the trust placed in the position.
This figure often appears in concurrence with other offences. It frequently concurs with disloyal administration (Article 252 of the Criminal Code), where the director exceeds their management powers causing harm, and with document forgery, where invoices, receipts or entries are manipulated to conceal the diversion of funds.
Defence Strategy
- Delimitation of the powers of the position: Establishing that the disposal of the funds fell within the powers of the employee or director.
- Absence of intent to appropriate: Showing that the use of the funds did not seek to incorporate them permanently into one's own estate.
- Disputing the amount: Challenging the figure to avoid the shift to the aggravated offence of Art. 250 CP (€50,000 threshold).
- Employment or commercial nature of the dispute: Maintaining that the disagreement over collections, expenses or settlements belongs to the employment or commercial sphere and not to criminal law.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Basic offence (Art. 249 CP) | Prison of 6 months to 3 years, depending on the amount appropriated and the harm caused. |
| Aggravated offence (Art. 250 CP) | Prison of 1 to 6 years and a fine if the amount exceeds €50,000, the act is especially serious or there is abuse of personal relationships. |
| Concurrence with disloyal administration | It may concur with disloyal administration (Art. 252 CP) and with document forgery where documents are manipulated to conceal the diversion. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Accounting Expert Report for the Defence
Providing an independent accounting report that distinguishes the wilful diversion of funds from a simple management irregularity or disagreement.
Establishing the Scope of Powers
Reconstructing, through contracts, powers of attorney and internal practices, the actual scope of the position's powers in order to rule out improper disposal.
Containment within the Basic Offence
Disputing the valuation of the harm and the amount to avoid the application of the aggravated offence of Art. 250 CP and its higher prison penalties.
Guide to Property Crimes in Spain: Defense Strategies
Property crimes (Crimes Against Assets) are regulated in Title XIII of the Spanish Criminal Code (Art. 234-304). These offenses range from petty theft to complex economic fraud, with penalties varying greatly depending on the amount involved, the method used, and any aggravating circumstances.
Key Distinctions: Theft, Robbery, and Fraud
| Offense | Article | Key Element | Basic Penalty |
|---|---|---|---|
| Minor Theft (Hurto leve) | Art. 234.2 | <400€, no force | Fine 1-3 months |
| Theft (Hurto) | Art. 234.1 | >400€, no force | 6 months – 18 months |
| Aggravated Theft (Art. 235) | Art. 235 | Special items/multi-recidivist | 1 – 3 years |
| Robbery with Force | Art. 240 | Breaking in/tools | 1 – 3 years |
| Robbery with Violence | Art. 242 | Direct threat/intimidation | 2 – 5 years |
| Fraud (Estafa) | Art. 249 | Deception + financial harm | 6 months – 3 years |
Main Defense Strategies in Property Crimes
Challenge the Animus Lucrandi
Demonstrate that the accused had no intent to profit — a valid defense in alleged theft cases.
Contest Valuation
Dispute how the value of the stolen item was assessed. Below €400 = minor offense with much lower penalties.
Prior Consent or Ownership Claim
In disputes between acquaintances, prove the accused believed they had a right to the item.
Recidivism Analysis
Many aggravated theft charges rely on prior criminal record. Challenge the computation of prior offenses.
Chain of Custody (Receiving Stolen Goods)
Challenge the prosecution's evidence that the accused knew the items were stolen.
Error of Type Defense (Fraud)
In commercial fraud cases, demonstrate that the accused genuinely believed their representations were true.
Critical: Time Limits for Evidence
In property crimes, digital evidence (CCTV footage, mobile location data) is often deleted within 30 days. Contacting a specialist lawyer immediately after arrest or charge is essential to preserve exculpatory evidence.
Why Choose Us?
Need a criminal defense lawyer for this type of offense? Here's how we work:
gavelElements of the Crime
- check_circlePerson linked to the company:Employee, director or partner who receives the assets by reason of their position, in administration or in custody.
- check_circleAppropriation or diversion:Permanently incorporating the assets into one's own estate or diverting them to a destination other than the intended one.
- check_circlePrior lawful receipt:The funds or assets reached the person lawfully; the criminal reproach arises from the destination given to them afterwards.
gavelPenal Consequences
Prison of 6 months to 3 years, depending on the amount appropriated and the harm caused.
Prison of 1 to 6 years and a fine if the amount exceeds €50,000, the act is especially serious or there is abuse of personal relationships.
It may concur with disloyal administration (Art. 252 CP) and with document forgery where documents are manipulated to conceal the diversion.
FAQs
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