Six years have passed since the reform of the Penal Code of 2015, in which the characteristics that criminal prevention models should have to mitigate or exempt legal persons from criminal responsibility were specified. Within these criteria provided for in article 31 bis 5 is the establishment of a disciplinary system that punishes non-compliance with the measures established by the model (paragraph 5.º of said article).
The doctrine has not paid much attention to this requirement. Nowadays, it is usual for most criminal prevention models to refer exclusively to the sanctioning system provided for in the applicable collective agreement. The application of criminal prevention models is not limited only to the employees of the legal entity, but also to another series of subjects such as its administrators or its suppliers. In the case of these last two examples, it is clear that the applicable collective agreement is not applicable.
In this sense, I consider that it may be appropriate to identify existing disciplinary systems in the law applicable to each of the relationships other than the employment relationship itself. For the categories reflected, administrators and providers, solutions must be found in commercial and civil law respectively.
In the case of administrators, the reference text is constituted by the Consolidated Text of the Capital Companies Law. Specifically, Title VI of the same provides in different chapters that can be taken into account for the design of the disciplinary system applicable to them. These are chapters II, relating to the dismissal of administrators; the III, on their duties; IV, in relation to their responsibility and, finally, within Chapter VI (specifically Article 251, referring to the challenge of resolutions of the Board of Directors).
In the case of suppliers, it must be taken into account that the disciplinary system that is applicable to them should be considered both in the contract that governs the relationship between the parties, and in the cases that apply, it must be included in the offer carried out by the legal person.
The gradation of the sanctions imposed may be similar, for example, to that established by administrative law, qualifying, from lowest to highest, as minor, serious and very serious. Also determine other degrees that are more in line with the reality of the company.
In short, the design of an adequate disciplinary system that does not collude with other applicable rights is crucial for the criminal prevention model to function at full capacity. This is not a marginal issue, but is another of the conditions that can make the difference between the legal person being exempted from criminal responsibility or being criminally convicted. That is why we consider that it is better not to consider it lightly.
Marta Molina
Head of Corporate Compliance
mmb@uhy-fay.com
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*(This article is based on a work published in March 2021, by the autor, in Academia: under the title Una propuesta de estructurar los sistemas disciplinarios de los modelos de Prevención Penal (cfr. artículo 31 bis 5 inciso 5.º)
