Algunas cuestiones en relación con el delito de administración desleal societaria en España, en especial autoría y omisión

Abstract

This article addressed some dogmatic issues related with the crime of corporateunfair management (art. 295 of the Spanish Penal Code). In addition, a brief mention is made about the future crime of unfair management which is part of the reform of the Penal code, now before Parliament. After discusses some of the problems related with the concept of administrator of law, it is consider the most discussed concept of facto administratoror manager. It is considered superfluous, as does the dominant doctrine, the statement (which can lead to confusion) partners among potential perpetrators, because they could be consider into the concept of facto administrator or manager. Some guidelines are also given for establishing criminal liability in cases of collegiate management. We advocate for the exceptional possibility of commission the crime by omission. Although we disagree with the regime of corporate criminal liability established since 2010 in our Penal Code, within its logic, it should have included this offense for situations where the manager is a corporate. This article also addressed some differences between unfair management and corruption. Finally, we believe that this work can be useful in Colombia, in order of the similarity to the Spanish Criminal Code, in particular with the unfair management of the art 250B Colombian Criminal Code.

Keywords

• unfair management
• corporate unfair management
• corporate criminal liability
• omission