CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
person to subtract from the public or private funds or effects under their charge (Article 234 of the Criminal Code); and • embezzlement by distraction, which is a crime committed by a public employee who applies the proceeds or effects in their charge to their own use (Article 235 of the Criminal Code). Grant Fraud This a crime committed by a public employee who defrauds or consents to the defrauding of the state, municipalities or public educational or charitable institutions, whether by causing them loss or depriving them of legitimate profit, in operations in which they intervene by reason of their position (Article 239 of the Criminal Code). Unlawful Negotiation This offence punishes public employees who directly or indirectly take an interest in any negotiation, action, contract, operation or man - agement in which they may intervene because of their position. According to the prevailing doctrine, this provision establishes a crime of abstract danger, which is consummated by the mere execution of the conduct, without requir - ing verification of a result or damage to the fis - cal patrimony (Article 240 No 1 of the Criminal Code). 2.5 Intermediaries The Chilean Criminal Code distinguishes between two classes of co-operators: (i) the co- perpetrator, legally equated with the perpetra - tor, although they do not take part directly in the execution of the crime; and (ii) the accomplice in the strict legal sense. The co-perpetrator is someone who conspires with another and provides the means for the commission of the crime. The accomplice,
conversely, is someone who is not included in the definition of co-perpetrator, but who also assists in the execution of the act with previ - ous or simultaneous actions. In the case of the co-perpetrator, they are punished with the same penalty as the perpetrator, while the accomplice is punished with a lesser penalty. 2.6 Lobbyists Lobbying activities have been regulated, since 2014, by Law No 20,730, which concerns all the steps taken to promote private interests before public servants and authorities. The basic prin - ciples of this regulation are to give publicity to and create the obligation for keeping a registry of the following: • meetings and audiences requested by lob - byists and particular interest managers that seek to influence public decision-making processes; • travel undertaken by the authorities and pub - lic servants in that capacity; and • gifts received by the authorities and public servants by virtue of their position. The Law prescribes administrative sanctions for public officials who violate the obligation of reg - istry or publicity as the law requires, providing sanctions such as fines, making the offender’s identity known on the official website of the service in question, and giving account of the infraction in the public account rendered by the service, among others. Lastly, the law explicitly indicates that its pro - visions do not preclude the eventual criminal liability that the conduct in question may lead to, that is, in cases of bribery and incompatible negotiation.
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