CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva
3. White-Collar Offences 3.1 Criminal Company Law and Corporate Fraud As mentioned in 1.5 Corporate and Personal Liability , Law No 20,393, which governs the criminal liability of legal entities, contains the offences that may give rise to criminal liability of companies. Since the enactment of Law No 21,595, legal entities can be responsible for every “economic crime”. Given that the catalogue of crimes is extensive, this chapter will only analyse the offences previously recognised in Law No 20,393, which are the most paradigmatic white-collar crimes. • Bribery of public officials – consists of offering or consenting to offer any kind of benefit differ - ent from that to which public officials are entitled according to their position (basic bribery). If the benefit is granted in consideration for the perfor - mance of an action that they are obliged to perform pursuant to their duties, for either not performing or not having performed an action or for perform - ing or having performed an action, in infraction of a particular duty or for committing certain corrup - tion crimes, the punishment increases (aggravated bribery). • Money laundering – is committed by anyone who in any way hides or conceals the illicit source of certain assets knowing that they proceed, directly or indirectly, from the perpetration of conduct that constitutes any of the predicate crimes listed by law, or who, knowing the origin of these assets, hides or disguises them. • Financing of terrorism legislation – punishes those who in any way, directly or indirectly, request, col - lect or supply funds for those who intend to com - mit terrorist offences. • Receipt of stolen goods – is committed when one person transports, sells or possesses any good knowing that it is the result of the commission of other specific offences. • Disloyal administration – penalises the person in charge of the management of a foreign interest who abuses their powers of attorney or executes or omits in a way manifestly contrary to the interest of the holder of the affected interest, causing dam - age to them.
ecutor. There is no judicial control over the decision of the prosecutor to file or not file charges. Nevertheless, regarding the prosecution of corruption cases, the National Prosecutor’s Office issued Official Letter No 278 in 2022, which provides general guide - lines in this regard. 2.7 Deferred Prosecution The Chilean Criminal Procedure Code provides mech - anisms to resolve a criminal proceeding without a trial. Parties may settle a dispute with a direct agree - ment between the plaintiff and the defendant. This is especially applicable in white-collar cases. The judge may dismiss the agreement only if the public interest requires further criminal prosecution. On a related note, the defendant may reach a deferred prosecution agreement with the Public Prosecutor’s Office consisting of the fulfilment of certain conditions for a certain period, after which the proceedings are terminated, if the estimated penalty to be applied in the particular case does not exceed three years of imprisonment and if the accused has no previous criminal record. Non-prosecution agreements are new to Chilean crim - inal law. Recently enacted Law No 21,694, establishes qualified effective co-operation, that in some cases can be equivalent to a non-prosecution agreement, as explained in 4.3 Plea Agreements, Co-Operation, Self-Disclosure and Leniency . In the case of corporate liability, deferred prosecu - tion agreements usually involve improvements in the crime-prevention model. However, due to the lack of general instructions, this is analysed on a case-by- case basis by the Public Prosecutor in charge of the investigation. This also applies to non-prosecution agreements; nevertheless, it is still unclear how it will be applied in these cases.
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