Responsabilidad penal de la empresa adquirenteanálisis del artículo 130.2 del Código Penal

Abstract

The Spanish legislator introduced in 2010 the criminal liability of legal persons (art. 31 bis of the Criminal Code), providing that their liability will not be extinguished in the event of transformation, merger or division, but will be transferred to the entity or entities into which it is transformed, merged or absorbed, and will extend to the entity or entities resulting from the division. It also provides that "dissolution concealed or merely apparent" does not extinguish criminal responsibility (art. 130.2 CP). Consequently, under the current RPPJ regime, the acquiring company may be liable, when certain assumptions and requirements are met, for the crimes for which the acquired company was originally responsible. The precept, despite its undoubted impact on the processes of restructuring and acquisitions of companies, has been, even today, the subject of little attention by the criminal doctrine. The voices that have been heard, in addition, do nothing but delve into the controversy that arouses everything related to the RPPJ regime, from its foundation, constitutional fit, interpretation or effects. The positions range from the open rejection, considering that it establishes a case of strict responsibility, contrary to the constitutional principles that govern criminal matters, to those that propose a restrictive interpretation, limiting the application of the precept to operations designed with the purpose of avoiding criminal responsibility, without missing others that reject some of the assumptions, but not all. The necessary integration of the precept with extra-penal concepts and institutions explains the great confusion it has generated so far and obliges, before addressing its analysis, to make a tour, even brief, by the normative framework to which it refers. Criminal law cannot be alien to the "legal reality" (GIERKE, FERRARA, LACRUZ) on which it imposes obligations and, as a consequence of its non-compliance, criminal liability; the legal system is a complete system, which recognizes rights and imposes duties, and its different parts must be consistent with each other. Therefore, the interpretation of art. 130.2 CP, pursuant to art. 3 CC, must be based on the concepts of transformation, merger, division, dissolution and termination of commercial law and, in particular, company law. Based on this approach, the study of the issue is addressed in the following order: 1. The first block is dedicated to review private law issues regarding mergers and acquisitions and their impact in criminal law. Since this is a criminal thesis, not a commercial one, the examination is reduced to the basic questions that are of interest to study art. 130.2 CP. At the end of each chapter, we synthesize the most relevant ideas. 2. The second block reviews the origins and background of the article 130.2 CP, including a comparative law study of the responsibility of the successor in other countries; the different positions maintained by Spanish doctrine and closes with a reference to the doctrines of the "successor" company in the USA) and the doctrine of responsibility of the entity that "continues economically and functionally" the company originally responsible for the crime (CJEU, ECHR and, lately, the Cour de Cassation in France). 3. The third block proposes universal succession as the basis and guiding criterion for interpreting article 130.2 of the Spanish Criminal Code and analyzes its application to acquisitions that take place prior to the initiation of criminal proceedings. After that, we submit our thesis to a validation test from the political-criminal, constitutional and technical-legal planes. 4. The fourth block includes the judicial decisions that have addressed the issue so far. 5. The fifth and final block contains our conclusions and proposals.