SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
3. Core Financial Crime Offences 3.1 Fraud and Dishonesty Offences Fraud Article 248 of the Criminal Code sets out fraud, one of the most prosecuted financial offences. The offence requires deception capable of inducing the victim to act in error, leading them to dispose of assets to their own detriment, with the intent to profit. The basic sentence is six months to three years’ imprisonment. Aggravated forms carry a maximum sentence of up to six years, when the amount exceeds EUR50,000 or affects numerous victims. Misappropriation Article 253 punishes anyone who receives money, goods, securities or other movable property with an obligation to return or apply it to a specific purpose and instead appropriates or diverts it. Unlike fraud, initial possession is lawful and there is no prior decep - tion; the essence is a breach of trust. The offence commonly applies to professionals handling third- party funds (such as lawyers, agents and employees with asset management authority). Sentencing mirrors fraud. Breach of Fiduciary Duty Article 252 punishes anyone with authority to manage another’s assets (conferred by law, public authority or contract) who breaches that authority by exceeding its scope, causing loss. Unlike misappropriation, there is no requirement of possession or intent to profit; know - ingly exceeding authority with awareness of harm suffices. This offence commonly applies to company directors and senior executives for harmful manage - ment decisions. Sentencing mirrors fraud. Fraudulent Concealment of Assets Article 257 punishes debtors who conceal, transfer or fraudulently encumber assets to frustrate credi - tors’ claims. The offence is complete upon disposal, without requiring actual creditor loss. The basic sen - tence is one to four years’ imprisonment plus a fine, increased where the amount is significant or the credi - tor is the Tax Authority or Social Security.
Punishable Insolvency Article 259 punishes debtors who, when actually or imminently insolvent, dispose of or conceal assets to creditors’ detriment. This offence typically applies to directors of insolvent companies. The basic sentence is one to four years’ imprisonment plus a fine, increas - ing to six years’ imprisonment where the creditor’s loss exceeds EUR600,000. Embezzlement of Public Funds Articles 432 and following punish public officials who misappropriate public funds in their charge or allow third parties to do so, with the intent to benefit them - selves or others. Sentences range from two to six years’ imprisonment plus disqualification. Sentences may increase to twelve years when amounts exceed EUR250,000 or serious harm is caused to public ser - vices. Public Procurement Fraud and Illegal Exactions Article 436 punishes officials who collude with inter - ested parties or use artifice to defraud public adminis - tration in contracts or supplies (imprisonment for two to six years plus disqualification). Private individuals who collude with such officials face the same impris - onment sentence and disqualification from public subsidies and aid, public sector contracting and tax or Social Security benefits for two to seven years. Article 437 punishes public officials who demand, directly or indirectly, fees, tariffs or charges that are either not legally due or exceed the statutory amount (fine of six to twenty-four months plus suspension from public office for six months to four years, without prejudice to any restitution obligations). 3.2 Bribery and Corruption Bribery of Public Officials The Criminal Code defines the offence of bribery in Articles 419 and following. It penalises any public offi - cial or authority who receives, requests or accepts a gift, favour or payment of any kind. The offence is complete upon the mere request or acceptance; the corrupt act need not take place. The applicable pen - alty depends on the nature of the conduct sought: • conduct against duties, failure to act or unjustified delay: imprisonment of three to six years, fine of
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