CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
• certain conduct related to water pollution and illegal fishing activities; and • from December 2022 onwards, computer crimes. In this regard, Laws No 21,227 and No 21,240 established new crimes in the context of the COVID-19 pandemic, and Law No 21,459 incorporated new offences related to computer crimes – all conduct for which legal entities can be criminally liable. Despite the above, Law No 21,595 on Economic and Environmental Crimes, approved in August 2023 and which began taking effect in August 2024, introduced profound changes into Law No 20,393. According to this law, companies are criminally liable for every “economic crime” listed in Law No 21,595, whether they are con - sidered economic crimes by that law or not, which translates into more than 200 offences and exponentially expands the list of imputable offences. Among them, fraud, disloyal adminis - tration, unlawful negotiation and misappropria - tion are worth highlighting. Regarding all the above-mentioned offences, the public prosecutor may indict both the individual criminal liability of the executive and the crimi - nal liability of the company, but managers are not criminally liable for the sole conviction of the company. In fact, the public prosecutor’s office has no institutional guidelines stating that either individuals or companies must be preferentially prosecuted. It should be noted that Chilean criminal law does not distinguish between limited liability compa - nies and other types of corporations. In cases of reorganisation, merger, acquisition, division or dissolution of a company that is criminally liable for one of the sanctioned crimes, Law No 20,393
provides that the liability for such acts is trans - mitted to the successor. 3.2 Claims Against Ultimate Beneficial Owners As stated in 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts , if a com - pany was created with the purpose of being a vehicle for fraud, the ultimate beneficial owners could be criminally liable for unlawful associa - tion. Another possibility is a charge as an accessory- after-the-fact for the corresponding fraud claim, which specifically contemplates the hypothesis of benefiting from the crime, as explained in 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts . Money laundering offences could also be rel - evant, if the ultimate beneficial owner received the profits of the fraud committed within or by the company and then reinvested or spent such unlawfully obtained assets. Depending on the details of the case, certain conduct could also constitute a tax crime, such as evasion or the fraudulent obtaining of tax returns. 3.3 Shareholders’ Claims Against Fraudulent Directors Since the enactment of Law No 21,595, the case of fraudulent directors who exercise control over the company against its interests constitutes the crime of “abuse of majority position” regulated in Article 134 bis of the Corporations Law (Law No 18,046). This article sanctions the adoption of abusive agreements taking advantage of a majority position on the board of directors of a company, or of the status of controller of the
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