CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
After the enactment of Law No 21,595, the legal requirements for corporate liability are the fol - lowing: • the illegal conduct consists of the specific crimes listed by the law, which has been rel - evantly expanded; • the illegal act is carried out by a person who holds a charge, function or position in the legal entity; a person who provides services to the company managing their affairs before third parties, with or without representation; a person related in the previous terms with a different legal entity, that provides services to the company managing their affairs before third parties, with or without representation or that lacks operational autonomy with regard to it, when there are ownership or participa - tion relationships between them; • the act has not been exclusively committed against the legal entity; and • the perpetration of the criminal act was favoured or facilitated by the lack of effective implementation of a suitable crime-prevention model by the legal entity. Law No 20,393 on Compliance Programmes According to Article 4° of Law No 20,393, com - pliance programmes will be considered appro - priate for having the aforementioned exemption effect, provided that – taking into account the company’s corporate purpose, line of business, size, complexity, resources and activities – they seriously and reasonably consider the following aspects: • identification of the activities or processes of the legal entity that involve the risk of criminal conduct; • the establishment of protocols and proce - dures to prevent and detect criminal conduct in the context of the activities referred to in
the previous point, which must necessarily consider safe reporting channels and internal sanctions in the event of non-compliance; • assignment of one or more persons as responsible for the application of said proto - cols (provided with independence, effective management and supervision powers, direct access to the administration, and the material and immaterial resources and means neces - sary to adequately carry out their tasks); and • the provision of periodic evaluations by inde - pendent third parties and mechanisms for improvement or updating. Division of responsibility for criminal conduct Regarding all the above-mentioned offences, the public prosecutor may seek both the individual responsibility of those who performed the con - duct and the criminal responsibility of the com - pany. However, the Public Prosecutor’s Office has no institutional guidelines that state that either individuals or companies must be prefer - entially prosecuted. Moreover, managers are not criminally responsible for the mere fact that the company is convicted of a crime. There is no special provision dealing with the possibility of the same lawyers representing the legal entities and the natural persons involved, and joint representation is common, except where the defence strategies are incompatible (the Bar Code of Ethics and the Criminal Proce - dure Code are applicable). In the case of a reorganisation, merger, acquisi - tion, division or dissolution of a company where one of the sanctioned crimes was committed, Law No 20,393 provides that responsibility for such acts is transmitted to the successor.
89
CHAMBERS.COM
Powered by FlippingBook