The crime of punishable insolvency

The offense of insolvency punishable is the causation, or aggravation, of insolvency or economic crisis, by the debtor when certain conducts provided in the Criminal Code, circumstances that are the same as provided for in commercial legislation for the determination of the insolvency as wrongful or guilty.

Difference with the crime of raising property

There is no substantial difference between the lifting of assets and the crime of punishable insolvency. In both cases it is the causation (or aggravation) of the insolvency situation to the detriment of creditors. After the reform of the Criminal Code operated by LO 1/2015, both offenses are punished with the same prison term of 1 to 4 years and only the distinction is established in the minimum limit of the fine, in 8 months for the punishable insolvency, while in the uprising is 12 months.

The same requirement or objective budget required by the insolvency law for the bankruptcy is established: that the creditor is in a situation of current or imminent insolvency. It also establishes that the proceeding should continue due to the raising of assets even when a bankruptcy proceeding was initiated after its commission, so that two criminal proceedings could also coexist: one for the raising of assets and another for punishable insolvency, which would not be admissible when dealing with crimes on the same facts.

The initiation of a bankruptcy process, therefore, does not add any additional devalue, as, on the contrary, it was done with the previous regulation. The conduct that caused the insolvency is equally serious before the insolvency proceedings begin that after.

Legally protected

It consists, as in the crime of uprising, in the right of creditors to the satisfaction of their credits. Hence, an important doctrinal sector, also mercantilist, advocated the exclusive maintenance of the crime of raising property.

However, minority doctrinal sectors have tried to attribute the status of legal good in this crime to other interests.

There are supporters of the understanding that attributes to the Administration of Justice the character of a legal asset protected by the insolvency insolvency crime. The reason is to be found in the fact that the right to credit in the contest is contemplated from a collective point of view (the mass of creditors) to get a parity treatment of the credits (par conditio creditorum). This special treatment of equality would be the subject of protection of criminal law when punishing bankruptcy insolvency.

With the bankruptcy insolvency crime, the bankruptcy executive process is protected, the Administration of Justice. The most important objection that this understanding has to support is that it would be necessary to exclude from the offense those cases in which the conduct is carried out prior to the opening of the bankruptcy proceeding.

The devalue of the offense in the crime of insolvency punishable lies in the fact of placing the debtor in a situation of insolvency. The direct meaning of this behavior is that of the debtor’s breach of the duty to conserve his own assets, that is, his ability to pay. Thus, the correlative right of the creditors to see their unpaid claims satisfied appears as a protected legal right. However, it can not be questioned that, on the one hand, the insolvency situation in the modern economy causes chain consequences and, therefore, with the punishment of bankruptcy insolvency the economic order is protected.

Nor can it be forgotten that the modality of behavior also affects the devalue of the offense. Hence, other interests are also indirectly protected, such as the interest in equal treatment in the satisfaction of the credits or in knowing the patrimonial inventory and debtor’s business movement to guarantee their credits, etc.

Passive subject

Taxable person is any creditor whose right to the satisfaction of his credits has been injured by the insolvency situation. We understand that creditors are in this situation who lack any preference and special guarantee so they see their credit converted into a simple right to the dividend (par conditio creditorum).

Excluded are those creditors, such as the pledgee or mortgagee who are guaranteed their credits with a security right to the extent that the thing reaches the amount of the credit, in which case it can not be said that the debtor is in a situation of insolvency against such creditors. . Keep in mind that the mortgagee even does not stop interest accruing. Therefore, it is not possible to identify the taxpayer and the mass of creditors of the bankruptcy

Active subject

Active subject of the punishable insolvency crime is the debtor. It is a special offense of its own, so that the perpetrator who acted on behalf of the debtor may also be an author.

If the bankrupt is a legal person, the de facto or de jure administrator who has performed the behavior responds.

Being a special offense of its own, the relevant rules in relation to criminal participation apply.

In this context, persons who, with intent or gross negligence, have cooperated with the debtor, administrators or liquidators, in any act that has established the qualification of the contest as guilty are also responsible as accomplices.

In the insolvency area, the qualification of the subjects that have cooperated as accomplices entails the loss of all their rights as bankruptcy creditors.

Typical behavior

Conduct in the crime of insolvency is punishable insolvency, that is, insolvent.

There are two types of punishable insolvency of the debtor that is currently or imminently insolvent:

– on the one hand, the performance of certain conducts that are considered to infringe the duty of care in the management of economic matters when the debtor is in a situation of current or imminent insolvency; Y

– on the other hand, when any of the same behaviors that are described also cause their insolvency situation.

Conduct and Duty Duties

The prohibited conducts range from the performance of any conduct that does not conform to the duty of diligence in the management of economic matters and that diminishes the value of patrimonial elements that are, or that should be included in the mass of the contest at the moment from its opening, through the simulation of credits or recognition of fictitious credits, participation in speculative businesses that lack economic justification and result – in the circumstances of the case and in view of the developed economic activity – contrary to the duty of diligence in the management of economic matters, breach of duty to keep accounts, carrying double bookkeeping, concealment, destruction or alteration of the documents that the employer is obliged to keep, etc.

The behaviors and duties of diligence whose infringement is typified are the following:

a) Hiding, causing damage or destruction of property or assets that are included or should be included in the mass of the contest at the time of opening.

b) Acts of patrimonial disposition that do not keep proportion with the patrimonial situation of the debtor, nor with his income and that lack of economic justification. With this forecast, as happens with the first of the circumstances, is is punishing an irresponsible decrease in mass.

c) Realization of sales operations or services at a price lower than their cost of acquisition or production and that the circumstances of the case lack economic justification.

d) Simulation of third-party credits or recognition of fictitious credits. We are here before the typification of simulated acts or businesses.

e) Participation in speculative businesses that lack economic justification. Speculative businesses are very high and special risk businesses in order to obtain profits that exceed those that could be obtained with businesses that can be considered reasonable within the scope of business activity.

f) Breach of the legal duty of accounting, double accounting or accounting irregularities. These are absolute non-compliances or so-called “make-up accounts”.

g) Hiding, destruction or alteration of documentation with obligation of conservation. The conservation duties referred to herein must be those established in the mercantile regulations, since, in principle, if they were other conservation duties -as those established by tax legislation- they should be subsumed, where appropriate, as a fiscal offense, if the other typical requirements were met.

h) Formulation of accounts or keeping of accounting books contrary to the regulations regulating commercial accounting.

i) Performance of any active or omission conduct that constitutes a serious breach of the duty of care in the management of economic matters and to which a decrease in the assets of the debtor is attributable or which obscures the economic situation of the debtor.

Commission by omission

The breach of duties imposed by the bankruptcy law are the source of the position of guarantor, which in these cases could allow the subsidiary application of the offense of property uprising, since they are duties incumbent on those administered prior to the request for bankruptcy.

The Bankruptcy Law establishes an important number of duties to the debtor and also to the insolvency administrators that allow to base, without a doubt, the position of guarantor of these and, therefore, it would allow to sustain the possible commission for omission of the crime of raising assets.

The possible commission for omission of the crime of raising assets in relation to the obligations imposed by the bankruptcy law to the debtor, as well as the presumption of knowledge of the insolvency: it is imposed on the debtor the duty to request the declaration of bankruptcy within 2 months following the date on which the insolvency is known, and it is presumed that the debtor has known his insolvency status when any of the facts that may serve as a basis for the request occurred. In these cases, there could be an offense of commission uprising for omission prior to the declaration of bankruptcy.