It highlights the need for effective prevention models and the correct designation of responsible parties in their governance, in accordance with Law No. 20,393.
The Court of Appeals of Iquique (case Rol Rol N°116-2025 Penal), recently confirmed a decision of the Criminal Oral Trial Court of that city, which convicted the General Manager of a company for the crime of misappropriation by declaring and not paying the contributions of the workers who provided services for it.
Thus, since it was a common practice of the company managed by this manager to deduct, declare and not pay the contributions of its workers – a fact stated in the case – the appellant alleged that the court of first instance had “presumed the guilt of the convicted person by imposing an extra-legal criterion due to the condition or status of a person”, that is to say, due to his status as general manager.
The appellant alleges that the decision to deduct and not pay the workers’ contributions had been adopted in previous administrations and that the role that the owner of the company had in the decision had not been considered, as well as that of the company’s board of directors, alleging two grounds for nullity and expressly questioning that the court of first instance had ruled that:
“The general manager cannot ignore the way the company operates, even if it originates in the actions of the owner of the business, because it is a way of administering and achieving the company’s objectives, which necessarily links the actions of the convicted person in the management position to the deduction, declaration and non-payment of the contributions”.
Thus, the Court of Appeals, hearing the appeal, decided to reject the two grounds for nullity presented, establishing that the participation of the general manager in the withholding and non-payment of the workers’ contributions was not a “gratuitous conclusion of the court”, nor based solely on his position.
On the contrary, in this case it was considered to be accredited on the basis of the evidence presented at trial, in particular the testimony of the witnesses who gave an account of how the company operated and which allowed the court to reason that the general manager “knew of the typical fact and that he intervened in the decision because he was in charge of the company in his capacity as the person in charge of the administration”, This was further complemented by the powers that he had – and that were recorded in the public deed in which he was appointed as general manager – which, among other things, allowed him to “make declarations, pay taxes, social security contributions and others”.
This ruling highlights and reinforces the jurisprudential standard that the general manager has specific duties in the management of the company, such as ensuring that workers’ contributions are declared and paid in a timely manner. This means that, by virtue of the management powers he holds, he was in a position both to know of and to avoid non-compliance.
Therefore, failure to give the necessary instructions to pay the contributions, knowing of this obligation, can give rise to a criminal charge as a perpetrator.
The judgment reaffirms that the capacity of manager does not constitute per se the basis for the conviction, but rather it is the concrete exercise of his functions and the omission of his duties that constitute his criminal liability.
The confirmation of the conviction of the general manager for the deduction, declaration and non-payment of social security contributions shows that the omission in the fulfillment of these obligations, even when it is alleged to be an inherited practice, does not exempt from criminal liability those who hold positions with administrative powers.
They may be exposed to criminal charges such as misappropriation of social security contributions, failure to withhold or pay contributions, or malicious misreporting of contributions.
The above highlights the need for effective prevention models and the correct designation of responsible subjects in their governance, in accordance with Law No. 20.393, in order to mitigate risks and strengthen control mechanisms and ethical culture within organizations.
For more information on the subject, please contact:
Jorge Arredondo | Partner | jarredondo@az.cl
Loreto Hoyos | Director Penal Group | lhoyos@az.cl
Yoab Bitran | Director Compliance Group | ybitran@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Catalina Valdés | Associate Criminal Group | cvaldes@az.cl
Macarena Navea | Associate Compliance Group | mnavea@az.cl
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