Page 17 - ENGLISH MONTT GROUP, MAYO 2024

ChILE
CriMinaL reSponSibiLity: DIrECtOrs, ManagErs anD LEgaL EntIty
A new regulation established in Law 20,393 refers to the criminal liability of legal entities. This means that companies can now be criminally prosecuted for crimes committed by employees.
Up to this point, the law contemplates three crimes: Money Laundering, Bribery and Financing of Terrorism. As of August 17, 2023, new economic crimes were incorporated in the corporate sphere in Chile. The first refers to the crime of concealment of information in corporate contexts: The directors, managers, administrators or main executives of a public limited company became criminally responsible and heavily sanctioned for giving or approving giving false information on relevant aspects that allow us to know the assets , the financial and legal situation of the company through the report, balance sheets or other documents intended for partners, third parties or the Administration. Along with them, those in charge of keeping the company’s accounting, external auditors and account inspectors outside the company who collaborate in the event are also criminally responsible. The penalty will also be imposed on those who collaborate in the act on the occasion of the provision of external audit services by a legal entity. However, as expected, if these behaviors are carried out in an open corporation, the penalty is even more serious.
Next, the crime of abuse of share majorities: The majority of a Board of Directors will be criminally responsible if it adopts an abusive agreement to benefit itself, or another, to the detriment of the other partners and to the extent that it does not provide a benefit to the company. Along with this, the controller of the company who induces the abusive agreement of the board of directors, or who contributes to its execution with his agreement or decision, will also be criminally responsible.
These new crimes were incorporated along with a system of mitigating and aggravating circumstances linked (a) to the search or not for an economic benefit from the perpetration of the act for oneself or for a third party; (b) if the agent merely omitted to take any action that would have prevented the commission of the crime; (c) if he acted under pressure and in a situation of subordination within an organization;
(d) if he acted in a position of subordination and with limited knowledge of the illegality of his actions; (e) the amount or magnitude of the damage; (f) whether the agent abusively exercised authority or power in perpetrating the act.
Likewise, other relevant sanctions are provided: It should be noted that in addition to deprivation of liberty, several disqualifications are imposed as accessory for public positions and, in what is of interest here, for the exercise of managerial positions, which includes serving as a director or executive principal in any entity.
It is worth explaining something about confiscation: The confiscation of profits obtained through an illicit act can be decreed without prior conviction and it is imperative to order it as it is an economic crime. This even extends to transactions that have been carried out with illegal proceeds.
The above entails the criminal liability of legal entities: A legal entity will be criminally responsible for these crimes when it is perpetrated within the framework of its activity by or with the intervention of a natural person who occupies a position, function or position in it, or provides services to you by managing your affairs before third parties, with or without your representation, provided that the perpetration of the act is favored or facilitated by the lack of effective implementation of an adequate model for the prevention of such crimes, by the legal entity.
This responsibility arises even when the crime is committed by a third party who provides services managing his affairs before third parties, with or without his representation.
Finally, it should be noted that it is preventable and in any case will be exempt from criminal liability if the legal entity has an effectively implemented crime prevention model, that is, to the extent that it is adequate for the purposes of exempting it from criminal liability when, in accordance its corporate purpose, line of business, size, complexity, resources and the activities it carries out, seriously and reasonably consider prevention aspects established by the regulations.
www.MONTTGROUp.COM
pAGE No :17