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Pellicer & Heredia

Criminal Law

Criminal Law | Pellicer & Heredia

We have a high degree of expertise and extensive experience in the field of criminal law.

At Pellicer & Heredia we deal with any criminal matter, for both the defence and the prosecution: scams, economic crimes, money laundering, crimes against public health or political crimes, among others.

Criminal Law is one of the most serious areas and a poor choice of advice can have severe consequences.

We recommend that you put your confidence in expert criminal lawyers who take on your defence with guarantees. Pellicer & Heredia’s objective is to achieve the highest level of success providing fully personalised attention.

Know the types of conduct and aggravating circumstances:


Bankruptcy.

Bankruptcy is a legal process through which a person or a business who can’t repay outstanding debts may seek relief from some or all of their debts.

Bankruptcy is regulated in articles 259 to 261 bis of the Criminal Code. In the following article, Pellicer & Heredia will highlight the types of conduct referred to under article 259, together with the aggravating circumstances in this case.


The types of conduct are:

• Hiding, causing damage or destroying property or assets that are included, or that would have been included at the time of filing for bankruptcy, carrying out acts of disposal by handing over or transferring money/ assets, or through the assumption of debts which are not in proportion to the debtor's assets, nor to their income and which lack economic justification.

• Sell or provide services for a price lower than their acquisition or production cost, and which in the circumstances of the case, lack economic justification.

• Simulating loans from third parties or recognising fictitious loans.

• Participate in speculative business, when this lacks economic justification and in the current situation, considering the financial means looks contrary to the duty of diligence in the management of financial affairs.

• Failure to comply with the legal duty to keep accounts, to keep double accounts, or to commit irregularities which are relevant for the understanding of their assets or finances.

• Destroying or altering the accounting records, when in this way the understanding of their assets or financial situation becomes significantly difficult or impedes.

• Hiding, destroying or altering the documentation that the businessman is obliged to keep before the expiry of the period to which this legal duty extends when in this way the examination or assessment of the debtor's financial circumstances becomes difficult or impossible.

• Prepare the annual accounts or the accounting records in a manner contrary to the regulations governing commercial accounting, in such a way as to make it difficult or impossible to examine or assess the debtor's financial circumstances, or to breach the duty to formulate the balance sheet or inventory within the time limit.

• Engaging in any other active or illegal conduct that constitutes a serious breach of the duty of diligence in the management of financial affairs, and which is attributable to a decrease in the debtor's net worth or through which the debtor's financial circumstances or business activity is concealed.

Therefore, the legal asset protected in the regulation of the punishable insolvency offence is, on the one hand, the right of creditors to the satisfaction of their claims with the debtor's assets (ex article 1911 of the Civil Code) on all present and future assets, and on the other hand, the correct use of the credit system is protected.

We are talking about crimes of a patrimonial and socio-economic nature that are consumed with the mere performance of the conduct described in the Criminal Code in cases of current or imminent insolvency. This offence is punishable by imprisonment for a term of one to four years and a fine of eight to twenty-four months.

It is considered to be an aggravating circumstance when:

• A risk or patrimonial damage produced in the generality of people.

• Any of the creditors have suffered an economic loss of more than 60.000 euros;

• The state, regional, local or provincial Treasury and the Social Security have at least half of the amount of the bankruptcy credits.

The penalty applicable in these cases may be imprisonment from two to six years and a fine of eight to twenty-four months.


Fraud.

One of the most common criminal offences, and one which we can never protect ourselves too much from.

What is a fraud? Anyone who for their benefit misleads the consumer with wrongful information to conceal what should have been disclosed, which deceives and is intended to deceive another so that the individual acts upon it to her or his legal injury or that of others… that is a fraud.

Pellicer & Heredia works with a dedicated Real Estate Department, providing expertise in all legal aspects. Our team of experts can’t emphasize enough how important it is to make all the necessary legal checks, prior to signing any contracts and/ or making payments, in order to avoid being involved in a possible scam.

Today, we want to highlight the following points, which according to the Spanish Criminal Code are the defining elements of fraud:

  • A preceding or concurrent deception, backbone, key factor, soul and substance of the fraud.
  • This deception must be abundant, in other words, sufficient and proportionate, abstractly fit for the attainment of the purposes intended (to deceive the victim).
  • Origination or production of an essential error in the passive subject, ignoring reality or with distorted or inaccurate knowledge of the reality of it.
  • Act of patrimonial disposition with the consequent and correlative damage for the consumer, meaning that the injury of the protected legal property, the loss, is a product of a direct action of the affected party, albeit it being a consequential fact of the mistake made, and ultimately of the deceit.
  • Causal link or causal relationship between the deception caused and the injury suffered.
  • The dynamics of the offender must be presided over by a profit motive, a subjective element of the unfairness essential for the configuration of the crime.

With fraud, deception is vital to set the criminal type, since that is what intentionally causes harm, erroneously motivating the will and action of the victim who voluntarily surrenders.

Did you know that article 249 of the Spanish Criminal Code punishes fraud with a prison sentence? In that respect, to determine the specific penalty, the amount involved in the fraud will be taken into account, together with the economic loss caused, the relationship between the affected party and the fraudster, the means employed by the fraudster and any other circumstances that may serve to assess the seriousness of the offence. However, if the amount of the fraud does not exceed 400 euros, the penalty will be a fine.

Then there is article 250 of the Spanish Criminal Code, which classifies the so-called aggravated fraud, and punishes this crime with an even higher prison sentence when among other cases, “...it covers things of first need, housing or other assets of recognised social utility...”; “...reviews the particular gravity, taking into account the extent of the damage and the economic situation in which it leaves the victim or his family..., “....the value of the fraud exceeds 50.000 euros, or affects a large number of people...”, punishment being a prison sentence of between four and eight years and a high fine.

Therefore, we can conclude that when the crime of fraud involves a property, such as a home, we are faced with a particularly serious case of fraud, both for the fact of involving a home, as for the foreseeable value of it.