November 22, 2016
After the extensive reform enacted by LO 1/2015, the title of this article may become a reality, since article 258 of the Penal Code (CP) has been completely reformed, transitioning from a crime of asset stripping in which the responsible party was sanctioned for asset stripping with the intention of evading the fulfillment of civil obligations "ex delicto," now regulated in art. 257.2 CP, to sanctioning mere obstruction of an execution, as we will develop below.
It is true that before the aforementioned reform, generating delays, difficulties, and impediments in an execution was already regulated in art. 257.1.2º CP, an article which, despite its undeniable common features, sanctions different behaviors, as it requires asset stripping in an execution, while art. 258 CP punishes mere obstruction to the execution.
Given the brevity of this article, we will focus on the renewed art. 258 CP, leaving the development of the conduct of the crime of asset stripping for future works.
Article 258.1 CP
Section 1 of art. 258 provides for a prison sentence of three months to one year or a fine of 6 to 18 months for those who, "in a judicial or administrative execution procedure, present an incomplete or false list of assets or patrimony to the authority or official in charge of the execution, thereby delaying, hindering, or preventing the satisfaction of the creditor."
Well, we see how the criminal type requires the following elements:
- a) The existence of a judicial or administrative execution procedure.
- b) The presentation to the authority of an incomplete or false list of assets or patrimony, understanding that as a subjective aspect of the type, the accused's intent must be required.
- c) That the list of assets delays, hinders, or prevents the satisfaction of the creditor, i.e., a causal relationship is required between the debtor's conduct and the result of obstruction to the execution. Therefore, if the accused's conduct did not impede the execution, the conduct would not be typical. However, it should be clarified that the literal wording of art. 258 CP does not require for its consummation that the execution becomes impossible, but simply that it is delayed or made difficult.
Article 258.2 CP
The same penalty will be imposed on the debtor who, "when required to do so, fails to provide the list of assets or patrimony referred to in the previous section."
Therefore, the only conduct required by the criminal type is failing to provide the list of assets, constituting an omission crime, which would apparently be consummated from the moment the debtor, knowing the requirement, does not comply.
From the analysis of the type, we see that the legislator has not included in this section the need to delay, hinder, or prevent the satisfaction of the creditor. However, I agree with the thesis maintained by Mr. Javier Muñoz Cuesta [1], who argues that in a systematic interpretation between art. 258.1 and art. 258.2 CP, it would be necessary for the accused's conduct to delay, hinder, or prevent the execution, given that otherwise, the protected legal right could never be harmed.
As a "lege ferenda" approach, it is reasonable for the legislator to include in this section 2 the need for the effect on the satisfaction of the creditor provided for in section 1.
Article 258.3 CP
In section 3, the legislator introduces an exculpatory excuse affecting the punishability of the crime for cases where "before the authority or official has discovered the false or incomplete nature of the presented declaration, the person appears before them and presents a truthful and complete declaration of assets or patrimony."
Regarding this issue, I again share Mr. Muñoz Cuesta's opinion, understanding that the mentioned section 3 is an exculpatory excuse, rather than a requirement for prosecution, where, for example, the procedural action of a third party unrelated to the perpetrator of the crime is required, as occurs with art. 296 CP, which for corporate crimes requires as an objective condition of prosecution the "complaint of the aggrieved person or their legal representative."
The most important issue of this exculpatory excuse is to conclude whether it would apply only to section 1 or also to section 2, since the legislator only includes in the mentioned section 3 the possibility of "regularizing" their situation before discovering the false or incomplete nature of the declaration, and nothing indicates about anticipating the authorities and presenting the mentioned list of assets or patrimony out of time.
Well, in this professional's opinion, this exculpatory excuse should also apply to the debtor who does not provide the list of assets on time but rectifies and presents it before the Court or the Administration has discovered the lack of communication, as it would lack all legal logic and violate the "in dubio pro reo" to reward the rectification of the list of assets for formal defect but not for late submission, provided that such a list is submitted before the authority or official has discovered the lack of communication.
However, as a "lege ferenda" proposal, it would be wise for the legislator to include in future legislative reforms in the third section the possibility of the exculpatory excuse in cases of failure to submit the list of assets.
Notable Issues of the New Art. 258 CP
- PRINCIPLE OF MINIMUM INTERVENTION. The new article aims to protect the rights of creditors, despite the legislator undoubtedly receiving criticism for applying the principle of minimum intervention, which should govern their actions.
- GREATER PRESSURE ON THE DEBTOR. The executing creditors' powers to collect their debt are expanded.
In practice, for example, all legal professionals handling judicial executions see how debtors usually ignore the requests of the Clerks of the Court in application of art. 589 LEC, not stating "sufficient assets and rights to cover the amount of the execution," without suffering any harm with such omission. Thus, it seems that the executors will now be able to use art. 258 CP as a procedural tool to "pressure" the debtor with the possibility of filing a complaint in these cases.
- INFORMATION TO THE DEBTOR. The need to include in judicial and administrative resolutions the possibility of committing this crime. Currently, for example, the Decrees issued by the Clerks of the Court in application of arts. 589 and 590 LEC generally do not include the possibility of committing the crime of art. 258 CP, informing only of the possibility that the debtor may be sanctioned for serious disobedience (art. 556 CP) or sanctioned with the imposition of coercive fines.
- CORPORATE LIABILITY. The possibility that the legal entity is responsible under art. 258 ter CP after the reform introduced by LO 1/2015. The mentioned provision may be applicable when the crime of art. 258 CP is committed, and the requirements of art. 31 bis are met. Therefore, the possible commission of this crime must be included in the risk analyses conducted during the implementation of compliance programs.
- JURISPRUDENCE. So far, there do not seem to be significant convictions for the commission of the analyzed crime, given the short life of the reformed art. 258 CP. However, in a short period, we will probably begin to see complaints or reports for these reasons.
6. LEGISLATIVE REFORM. As indicated, the jurisprudential development will probably make it necessary to reform the new article, adding in section 2 the need to delay, hinder, or prevent the satisfaction of the creditor; and expressly introducing in section 3 the exculpatory excuse for cases of failure to submit the list of assets or patrimony.
[1] See: Muñoz Cuesta, Javier: "Frustration of Execution: A New Form of Creditor Protection." Revista Aranzadi Doctrinal, No. 9, 2015.
Ignacio Montoro Iturbe-Ormaeche | Specialist in Economic Criminal Law and Professional Civil Liability
