THE BANKIA CASE: LESSONS IN CORPORATE COMPLIANCE IN SPAIN
In 2010, for the first time in Spanish legal history, a reform of the Criminal Code attributed criminal liability to legal persons, with them becoming directly exposed to criminal law, and considered capable of committing offences and of being punished with sanctions.
The reformed Criminal Code, which stands in stark contrast to the previous prevailing principle notoriously expressed by the Latin aphorism societas delinquere non potest, regulated all matters relating to the new criminal liabilities, from the offences legal persons can commit, to the possible mitigating circumstances and sentences applicable, ranging from fines to the dissolution of companies.
Legal persons, according to the reformed legal text, may be considered fully liable for their deeds (i.e., they may be sentenced as wrongdoers) in two cases, namely: if a director or representative commits an offence benefiting the legal person; and if the offence benefiting the legal person was committed by employees, rather than by a director or representative, where the punishable act was made possible because the legal person concerned did not exercise due control over employees and their activities. This second form of liability entails consequences of enormous importance.
Jan-Mar 2018 Issue