CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
Moreover, if the third party assists by receiving the fraudulently obtained assets, whether such party is an accomplice, an accessory-after-the- fact or the author of an independent crime would depend on the nature of that possession. The last circumstance could be a case of handling stolen goods or money laundering, depending on the facts. 1.4 Limitation Periods The general limitation periods in the Chilean system depend on the nature of the criminal offence, as follows: • crimes that are punished with perpetual incar - ceration have a 15-year period to exercise the criminal action; • other crimes have a ten-year period; • misdemeanours have a five-year period; and • offences have a six-month period. 1.5 Proprietary Claims Against Property In Chile, the legal regulation regarding the recov - ery of property misappropriated or induced by fraud is deficient. In fact, there is no compre - hensive legislation dealing specifically with this topic. However, victims of fraud may use the general tools available according to Chilean law for vic - tims of crime seeking restoration, which can be sought in either a criminal procedure or a civil procedure. Either way, it is important to keep in mind that civil and criminal liability are independ - ent of each other: if the right to exercise civil actions is extinguished, this does not mean that the right to exercise criminal actions is similarly extinguished, and vice versa. One can seek to recover goods or proceeds, or both. There are some differences in the treat - ment the law dispenses for each of these sce -
narios based on who exercises the right, which will determine whether this can be done in a criminal procedure, a civil procedure or either of the two (but never in both). Concerning objects that were taken from a victim through fraud and that were seized during the criminal investigation, it is possible to request the restoration of these assets through a simple application to the criminal court that is hearing the case. However, this simple restoration action can be problematic in cases where it is not pos - sible to establish that the asset clearly belongs to the victim or where the asset has been trans - formed by the fraudster into another asset. A special regulation exists for stolen or fraudu - lently obtained goods, according to which such goods may be delivered to the owner or lawful possessor at any phase of the procedure, once their right has been proven and the value of the object has been established. Otherwise, the owner must wait until the court deems it neces - sary. An exception to this applies in the case of secret investigations for money laundering, in which all of the above does not apply as long as the secrecy has been decreed. Whether or not proceeds or property that rep - resent the proceeds of the original fraud can be recovered depends on their nature. Where the proceeds of the fraud are such that they would have been lawfully obtained by the owner if the fraud had not made it impossible for them to access the gains, or where the proceeds are the equivalent of the material value of the object, there could be a loss of earnings or profits that would sustain a compensation claim. For example, if the defendant obtains the owner - ship of shares in a company through fraudulent claims, and because of that perceives the utili -
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