Jaime Viveros and Daniela Castillo explain the scope of the new law on economic crimes, which amends the Penal Code.
The new law on economic crimes is one of the most important amendments to the Penal Code in recent years in our country. Since its passage, it has generated multiple doctrinal discussions regarding its application and constitutionality.
The reform proposed in our system by this new law is structured around two major institutions. The first one refers to the statute of economic crimes, applicable to natural persons as a result of the modification of the Criminal Code and some special laws; and the second one refers to the statute of criminal liability of legal persons, as a result of the reform of Law No. 20.393 that regulates, since 2009, its configuration.
This new regulation establishes a special and considerably more rigorous system than the current one for those conducts that are qualified as economic crimes by the law, based on a catalog that contemplates more than 250 crimes that address typical conducts as diverse as susceptible of being committed within an organization.
The catalog of economic crimes is organized into four main categories: the first includes the economic crimes that will be considered as such; the second and most extensive, which considers as economic crimes the acts committed in the exercise of an office, function or position in a company, or when perpetrated for the economic benefit of a company; the third, which considers as economic crimes those acts committed as perpetrator or participant by someone in the exercise of an office, function or position in a company, or for having been committed for its benefit; and a fourth category that groups together the crimes of receiving, laundering and laundering of assets.
Next, the reform contemplates changes in the regime of criminal liability applicable to natural persons, as it introduces modifications in the execution of penalties, after considering new requirements for the application of the alternative penalties of Law No. 18,216, as well as significant amendments in the matter of circumstances modifying criminal liability.
In this last order of ideas, one of the most controversial changes is related to the modification that expressly excludes the possibility of invoking the irreproachable prior conduct contemplated as a liability mitigating circumstance in Article 11 N°6 of the Criminal Code, to the extent that we are faced with facts that constitute any of the crimes contained in the catalog of the new law, provided that the requirements indicated above are met.
In this context, and by way of illustration, a director of a corporation, for example, who has not been in contact with the criminal system and has not been convicted, if he were to commit a crime contemplated in the catalog of Law No. 21,595, could not invoke the aforementioned mitigating circumstance, whereas a perpetrator of an ordinary crime, i.e., not economic, could see his sentence reduced if such mitigating circumstance is present.
The rationale behind this modification is related to the fact that economic crime, according to criminogenic studies and new criminal theories – which have solidly built the foundations of an “Economic Criminal Law” – has its own characteristics in terms of its form of commission, and that, by its nature, excludes its subjection to the common rules governing criminal liability in other types of more traditional and nineteenth-century crimes. Thus, for example, for the purposes of economic crimes, it is irrelevant whether the act is committed at night or in the open, or with malice aforethought, since the grounds for such hypotheses are not applicable to the ways in which crimes such as rape or robbery with intimidation are committed.
Notwithstanding the foregoing, and considering such line of argumentation, it is worth asking: does the above irreproachable conduct share the same rationale? If the rationale concentrates its main and natural interpretation on the form of commission, considering as essential characteristics the circumstances in which the crime is committed, such argument clearly does not seem to be applicable to the notions that inspire the mitigating circumstance of irreproachable prior conduct. In this sense, could it be that the just paid for the sinners?
Whatever the theoretical reflection that may be argued to support one or the other position, in effect, the law does not allow the application of the irreproachable prior conduct, in the case of the crimes that are systematized in it. This situation, in short, implies new problems in constitutional criminal matters, especially in view of the principles of justice and humanity that should inspire our current criminal system.
For more information please contact: