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MONTT GROUP MAGAZINE - 2024
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that can give rise to criminal liability for legal entitiesBy way of reference and without constituting an exhaustive list, the following crimes are added: i) environmental damage; ii) contamination in the context of circumvention of environmental management instruments; iii) contamination in the context of repetition of administrative violations; iv) abusive agreements in the board of directors of a public limited company; v) delivery of false information through the report or balance sheet of a public limited company; vi) labor exploitation (payment of remuneration that is manifestly disproportionate and lower than the minimum monthly income); vii) scam; viii) economic use of a trade secret; ix) use of false tax instruments and x) fraudulent tax refund.
It extends the list of subjects that can hold the legal entity criminally responsible. On the one hand, it establishes that any person who occupies a position, function or place in the organization can originate this responsibility and, on the other hand, it includes subjects outside the organization, such as people who provide services and manage its affairs before third parties, with or without power of representation, who can also generate liability for the legal entity.
It makes the criterion or nexus of attributing crimes more flexible for the legal entity, which no longer requires that the crime be committed directly and immediately in its interest or for its benefit. In this sense, it is sufficient that the perpetration of the crime has been favored or facilitated by the lack of effective implementation of an adequate Crime Prevention Model.
It reformulates the wording of article 4 of Law No 20,393, expressly establishing that the Crime Prevention Model has the capacity to exempt the legal entity from criminal liability when it has been effectively implemented, complying with certain minimum elements and taking into account the particularities of
the organization.
• Modifies the penalty regime applicable to
the legal entity: Among the most relevant modifications we can mention: i) extends the fine penalties up to 2,000,000 UTM (USD 141,000,000 approx.) and ii) introduces the penalty of supervision of the legal person.
• Eliminates the certification of the Crime Prevention Model and introduces periodic evaluations of the Model, which must be carried out by an independent third party.
III.- Overview of the criminal liability of the legal entity as of September 2024
Starting September of this year, legal entities will be recipients of a new legal standard, which raises the requirements regarding crime prevention and toughens the penalties in case of non-compliance. In this way, the legal risk management instrument that takes a central role in organizations is the Crime Prevention Model. A correctly designed and effectively implemented Crime Prevention Model may exempt the legal entity from criminal liability, in the event that one of its members commits a crime. Indeed, this system must address the characteristics of the organization, in terms of its activities and processes, to adopt adequate and effective internal controls in the prevention or, where appropriate, detection of criminal behavior.
In conclusion, it is possible to point out that the Prevention Model - in accordance with the new legal standard - will constitute a critical factor for the security of any organization in the development of its commercial activities, validating it - in addition - in the market as a safe agent for establishing business relationships and strengthening your reputation with your stakeholders.
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