CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
tion of money or movable property that has been received in deposit, administration, commission or any other title that creates an obligation to return the goods. Conspiracy, as the agreement between two or more parties to commit a felony, is not con - sidered a fraud in Chile. Furthermore, it is only punishable in the rare cases in which Chilean criminal law has specifically stated so, such as terrorism. 1.2 Causes of Action After Receipt of a Bribe The bribery of an agent would most likely fall under the category of private-to-private corrup - tion. A claimant could present a criminal com - plaint pursuant to Articles 287 bis or 287 ter of the Criminal Code, which punish either: • the director, administrator, employee or agent that accepts or requests a benefit, for them or a third party, to favour or for having favoured the hiring of an offeror; or • the third party that gives, offers or consents to give a benefit to the director, administrator, employee or agent, so that they favour or for having favoured an offeror over others. A bribe that is made not to favour an offeror but to act or omit conduct in the course of duty could constitute a different offence, such as breach of trust or misappropriation. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts Parties who assist or facilitate the fraudulent acts of another could be accused of partici - pating in the offence of the defendant, which is conduct generally punished by the Criminal Code. The law states that authors, accomplices
and accessories-after-the-fact are all criminally liable. Accomplices are considered such if they: • do not execute the conduct; • do not force or induce the author to act; and • are not part of a previous arrangement to commit the offence but facilitate the means through which it will be committed or co- operate with the execution of the crime by prior or simultaneous acts. In turn, they will be considered accessories- after-the-fact if, with knowledge of the perpe - tration of a crime or its preparations, and without having participated in them, they: • take advantage of the situation to benefit from the crime; • hide or destroy the means with which the crime was committed; • aid in the escape of the culprit; or • protect the wrongdoer. An exception exists for the spouse, civil cohab - itant or relatives up to the second degree (ie, parents and children) of the defendant, who can - not be punished for such conduct. However, a counter-exception applies if they profit from the crime. Despite the above, assisting a third party’s fraud could be considered an independent offence. This is the case of an unlawful association, which takes place when partnerships are established with the sole purpose of infringing the social order, good customs, people or property. Thus, if an association is created to commit any kind of fraud, and one of the participants is the sole executor, the accessory to the fraud could be a co-author of unlawful association (ignoring potential issues with concurrent offences).
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