CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva
In these cases, the public prosecutor may seek both the individual responsibility of the persons who per - formed the conduct and the criminal responsibility of the company. However, the Public Prosecutor’s Office has no institutional guidelines that preferentially pros - ecute either individuals or companies. It should be noted that legal entities are not criminally liable for the mere fact of not preventing the crime, but for lack of serious mechanisms to prevent it. Moreo - ver, managers are not criminally responsible for the mere fact that the company is convicted of the crime. In the case of a reorganisation, merger, acquisition, division or dissolution of a company where one of the sanctioned crimes was committed, Law No 20,393 provides that the responsibility for such acts is trans - mitted to the successor. However, it should be noted that the criminal liability of a company does not transmit to their parent com - pany or subsidiaries, therefore, each case must be addressed separately. 1.6 Sentencing and Penalties Each crime has a specific penalty established by law. Chile has a system in which general rules for penalty assessment are established, but in which the penalty may change depending on the mitigating or aggra - vating factors of the penalty, such as recidivism. In that sense, the penalty is calculated with attention to the following factors: the penalty assigned by law to the crime, the degree of development of the crime, criminal participation, mitigating and aggravating cir - cumstances, and the extent of the damage caused. Law No 21,595 introduces a new system regarding economic crimes, creating a differentiated set of rules for sentencing, with aggravating and mitigating fac - tors more appropriate to business crime. It is based on two elements: (i) culpability, according to the posi - tion held by the person in the organisation (the higher the hierarchy, the greater the penalty; the lower the hierarchy, the lesser the penalty) and the way in which that person has acted (greater intervention, greater penalty; less intervention, lesser penalty); and (ii) mag - nitude of harm, specifically the generation of harm or damage and the efforts to prevent or mitigate them.
Additionally in this regard, Law No 21,595 establishes a special regime to determine the effect that the con - currence of the circumstances will have to determine the applicable penalty. Finally, this new law contemplates a differentiated and stricter regime for the application of substitutive penalties regulated in Law No 18,216 and regulates additional consequences for the penalty, such as (i) fines, according to the “days-fine” ( días-multa ) system of Article 27; (ii) prohibition of holding public, manage - rial, or executive positions and contracting with the state; and (iii) confiscation of profits, comprehending the possibility of confiscation of everything obtained as a consequence of the crime and its imposition even when there is no conviction against those responsible. Deferred prosecution agreements, non-prosecution agreements and plea agreements are possible, as will be explained in 2.7 Deferred Prosecution and 4.3 Plea Agreements, Co-Operation, Self-Disclosure and Leniency . 1.7 Damages and Compensation Victims of a crime may file for damage compensation before the criminal courts or directly before the civil courts. Nevertheless, once the civil action has been declared admissible before the criminal court, the right to do so in the civil court is precluded. Such a right is exclusive to the victim. If third parties want to seek civil compensation derived from a crime, they must bring it before the civil courts. On the other hand, the action to obtain the return of the specific assets that were taken from the victim of the crime may only be filed before the criminal court. In a criminal proceeding, plaintiffs have the option of requesting that the judge order precautionary meas - ures upon the property of the accused to ensure the fulfilment of possible future civil liabilities – ie, through the retention of certain assets and the prohibition on performing acts or contracts regarding certain assets. If these measures are imposed upon the defendant, the victim must file a civil action during the criminal trial to seek damage compensation.
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