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MONTT GROUP MAGAZINE - 2024
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transformation since its entry into force, since the modifications that were introduced by Law No 21,595 on Economic Crimes, published in August 2023, will begin to take effect.
Without prejudice to the fact that the following lines will detail the main changes that the norm will undergo, it is appropriate to highlight that the new wording of Law No 20,393 will intensify the requirements for its recipients, since i) it significantly expands its scope; ii) gives a predominant role to the Crime Prevention Model of each organization and iii) reforms the imputation criteria for the legal entity.
I.- Criminal liability of the legal entity in Chile
The most relevant aspects of the current wording of Law No 20,393 are established below, before the modifications introduced by Law No 21,595 on Economic Crimes fully operate.
a) Subjects that may give rise to criminal liability of the legal entity
The Law establishes a list of subjects who, through the commission of a crime, can bring criminal liability to legal entities, namely: owners, controllers, managers, main executives, representatives or those who carry out administration and supervision activities in the legal entity, as well as natural persons directly under the direction or supervision of the above. b) Scope of criminal liability of the legal entity Regarding the legal entities addressed by the regulation, the Law in question limits its scope of application to legal entities governed by private law and State companies.
c) Budgets for the criminal liability of the legal entity
Regarding the budgets so that there can be criminal liability of the legal entity, the Law establishes that the following requirements must be met copulatively:
to the legal entity was limited, since it only contemplated the following criminal offenses: i) bribery of national and foreign public officials; ii) money laundering; and iii) financing of terrorism.
• Over the years, various successive legal reforms were enacted, which increased the number of crimes that make up the catalog of figures for which the legal entity can be criminally responsible.
• As an example, in 2016, liability for the crime of reception was introduced. Then, in 2018, the crimes of i) incompatible negotiation, ii) corruption between individuals were incorporated; iii) unfair administration; and iv) misappropriation. Subsequently, in 2019, the crimes established in the Fisheries and Aquaculture Law were introduced; while in 2022 computer crimes were added.
•
the LaW estabLishes a List of subJects Who, through the commission of a crime, can bring criminaL LiabiLity to LegaL entities, nameLy: oWners, controLLers, managers, main executives, representatives or those Who carry out administration and supervision activities in the LegaL entity, as WeLL as naturaL persons directLy under the direction or supervision of the above
• That the commission of the crime was a consequence of the failure, by the legal entity, of the duties of management and supervision. The Law establishes that the duties of management and supervision will be considered to have been fulfilled when, prior to the commission of the crime, the legal entity has adopted and implemented a Crime Prevention Model in accordance with the provisions of Article 4 of the same Law.
• That the crime committed by a member of the organization was committed directly and immediately in its interest or for its benefit.
d) Sanctions applicable to the legal entity
Regarding the penalties applicable to the legal
•
That a member of the legal entity commits a crime in the exercise of its functions. Initially, the catalog of crimes for which it was possible to attribute criminal liability
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