CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
1. Fraud Claims 1.1 General Characteristics of Fraud Claims The enactment in August 2023 of Law No 21,595 on Economic and Environmental Crimes changed the way Chilean legislation dealt with fraud claims. Even though legislation is still spread among different special regulations tar - geting various areas, the Chilean Penal Code now establishes a general definition of fraud, which contemplates the following core elements: • false representation – the defendant must have generated a misleading representation of the circumstances to the victim; • error – the victim must have a false represen - tation of reality as a result of the false claims made by the defendant; • property disposition – the victim must have executed an act of asset disposition because of the false representation of reality; and • economic damage – the act of economic disposition must have generated economic damage to the victim. This represents a paradigmatic change in the regulation of fraud, which was previously only defined casuistically. This new definition allows the fundamental structure of fraud claims to be interpreted more clearly, settling many of the dis - cussions that existed on the matter. For example, the new legislation expressly refers to obtain - ing financial gain as a motive for these criminal offences, making it clear that the intent to obtain a profit is a core element of fraud claims. There are several offences that constitute fraud claims, such as:
• malicious subscription of a document; • misappropriation; • breach of trust; and • incompatible negotiations. The category of false statements covers a wide variety of crimes, which can be broadly divided into two categories, depending on whether the statements are made in public or private docu - ments. Likewise, each of these categories can be subdivided into cases of:
• material falsehood; • ideologic falsehood; • falsehood by concealment; and • malicious use of a falsified document.
The penalty for each offence is determined by reference to the multiple hypotheses of false - hoods committed by a public officer in a public document. Under Chilean legislation, making corrupt pay - ments is not a type of fraud; however, in some cases it may constitute the crime of bribery of public officers, in others it may be punished as private-to-private corruption. Bribery of public officials has been regulated casuistically, by establishing different cases in which a public official is given, offered or has accepted any kind of benefit, even if there is no specific request associated with the benefit. Private-to-private corruption punishes an employee or mandatary who requests or accepts any kind of benefit in order to favour one bidder over another in a pri - vate tender. This crime is explained in 1.2 Caus- es of Action After Receipt of a Bribe . In Chile, misappropriation does not come under the category of fraud, instead being found in Article 470 No 1 of the Criminal Code. The offence consists of the appropriation or distrac -
• bankruptcy fraud; • fraudulent delivery;
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