Type of version Date of Enforcement LAW N° 20.393 ESTABLISHES

Type of Regulation
Date of Publication
Date of Promulgation
Organization
Title
Type of version
Date of
Enforcement
URL
:Law 20393
:02-12-2009
:25-11-2009
:MINISTRY OF FINANCE: UNDERSECRETARYSHIP OF FINANCE
:ESTABLISHES CRIMIAL LIABILITY OF LEGAL PERSONS REGARDING THE
CRIMES OF MONEY LAUNDERING FINANCING OF TERRORISM AND BRIBERY.
:Single
:02-12-2009
:http://www.leychile.cl/N?i=1008668&f=2009-12-02&p=
LAW N° 20.393
ESTABLISHES THE CRIMINAL LIABILITY OF LEGAL PERSONS REGARDING THE
CRIMES OF MONEY LAUNDERING, FINANCING OF TERRORISM, AND BRIBERY,
AS INDICATED.
Considering that the National Congress has approved the
following:
Bill:
Article One: The following law regarding the criminal
liability of legal persons is hereby approved:
“Article 1: Contents of the law. This law regulates the
criminal liability of legal persons regarding the crimes
described in article 27 of law N° 19.913, article 8 of Law N°
18.314 and in articles 250 and 250 bis of the Penal Code; the
procedure to be followed in the investigation and establishment
of said criminal liability, the determination of the
corresponding sanctions and their execution.
As established by this law, the following dispositions
contained in Book I of the Penal Code and Criminal Procedure Code,
and the special laws indicated above, where pertinent, will be
applicable additionally.
For the effects of this law, the terms of paragraph 2 of
article 58 of the Criminal Procedure Code will not be
applicable.
Article 2: Scope. The terms of this law will be
applicable to private legal persons and to State
corporations.
TITLE I
Criminal Liability of Legal Persons.
1.- Regarding the attribution of criminal liability of
legal persons.
Article 3. Attribution of criminal liability. Legal persons
will be responsible of the crimes established in article 1, which
are directly or immediately committed in their own interest and
for their own gain by owners, controllers, responsible agents,
senior executives, representatives or people in charge of
administration or supervision, provided that the crime is the
consequence of their non-fulfillment of their managerial and
supervisory duties.
In accordance with the same presuppositions as above, legal persons
will also be liable for crimes committed by natural persons that are under
the management or direct supervision of one of the individuals mentioned in
the paragraph above.
Management and supervisory duties will be considered fulfilled when
prior to the commission of the crime, the legal person had adopted and
implemented the organization, administration and supervision models required
for the prevention of the crime committed, as established in the following
article.
Legal persons will not be held liable in those cases in which the natural
persons indicated above committed the crime exclusively to their own advantage
or in favor of a third party.
Article 4: Model of Crime Prevention. For the effects of the terms
of the third paragraph of the above article, legal persons may adopt the
prevention model referred to herein, which should have the following
elements as a minimum:
1) Appointment of prevention officer.
a) The highest administrative authority of the legal person, who can
be either its board of directors, an administration partner, a manager, a
senior executive, a liquidator, its representatives, owners or partners, as
corresponds to the administration structure of the organization, hereinafter
the “Administrator of the Legal Person”, should appoint a prevention officer,
who will hold office for a maximum of three years, and whose appointment can
be renewed for equal periods.
b) The prevention officer should be autonomous with respect to the
Administration of the Legal Person, its owners, partners, shareholders or
controllers. Nonetheless, he may fulfill controlling or internal auditing
duties.
In the case of legal persons whose annual income does not exceed one
hundred thousand development units (UF), the owner, partner or controlling
shareholder may personally take on the functions of the prevention officer.
2) Definition of the means and faculties of the prevention officer.
The Administrationn of the Legal Person must provide the prevention
officer with the means and faculties required for the fulfillment of his
duties, which should include at least the following:
a) The material resources and means required to adequately fulfill
his functions, taking into account the size and economic capacity of
the legal person.
b) Direct access to the Administration of the Legal Person in order
to inform through an adequate medium, the measures and plans implemented
in the fulfillment of his duties and to report on his activities at least
once every six months.
3) Establishment of a crime prevention system.
The prevention officer, in conjunction with the Administration
of the Legal Person, should establish a crime prevention system for the
legal person which should at least contemplate the following:
a) The identification of the activities or processes of the
organization, be they habitual or sporadic in nature, whose context may
generate or increase the risk of the commission of the crimes established
in article 1.
b) The establishment of specific protocols, regulations and procedures
that will enable the persons involved in the activities or processes described
in the paragraph above, to program and carry out their work or duties in a
way that prevents the commission of the crimes described.
c) The identification of the financial, administration and auditing
procedures that allow the organization to prevent their use in the above
crimes.
d) The existence of internal administrative penalties, and procedures
for reporting or persecuting pecuniary liabilities against those
individuals who infringe the crime prevention system.
These obligations, prohibitions and internal penalties should be
listed in the regulations that the legal person draws up for its employees,
and which should be made available to them. These internal regulations should
be expressly incorporated into the employment and service contracts of all
the workers, employees and providers of services of the legal person,
including its own senior executives.
4) Supervision and certification of the crime prevention system.
a) The prevention officer, together with the Administration of the
Legal Person should establish the methods for the effective application
of the crime prevention model and its supervision, in order to detect and
correct its faults, and update it in accordance with any changes that may
occur within the respective organization.
b) The Legal Persons may obtain the certification of the adoption
and implementation of their crime prevention model. The corresponding
certificate should state that the model includes all the requirements
established in items 1), 2) and 3) above, as regards the situation, size,
activity, level of income and complexity of the legal person.
These certificates may be issued by external auditing companies, risk
classification institutions or other organizations registered with the
Superintendency of Securities and Insurance that can fulfill this duty in
accordance with the regulations established by the above-mentioned
supervisory organization.
c) It is understood that the natural persons that take part in the
certification activities carried out by the organizations described in
the previous item fulfill a public function as established in article
260 of the Penal Code.
Article 5.- Autonomous criminal liability of the legal person. The
liability of the legal person will be autonomous of that of natural persons
and will subsist with the existence of the requirements of article 3, when
one of the following situations arises:
1) Individual criminal liability would have ceased to exist in
accordance with the terms of items 1 and 6 of article 63 of the Penal Code.
2)
Should the criminal proceedings against the natural persons
indicated in items one and two of article 3 declare the temporary dismissal
of the accused, according to the causes established in sections b) and c)
of article 252 of the Criminal Procedure Code.
The liability can also be pursued when, having accredited the
existence of any of the crimes established in article 1, and when the other
requirements established in article 3 have been fulfilled, it has not been
possible to establish the participation of the individual(s) responsible,
provided that in the course of the corresponding legal proceedings it is
proved that the crime was necessarily committed within the scope of the
functions and duties of the individuals indicated in paragraph one of
article 3.
2.Regarding the circumstances that reduce the criminal
liability of a legal person
Article 6. Extenuating circumstances. The following are the
extenuating circumstances are applicable to the criminal liability of
the legal person:
The one indicated in item number 7 of article 11 of the Penal Code.
2) The one indicated in item number 9 of article 11 of the Penal Code.
It will be specifically understood that the legal person collaborates
substantially when, at any stage of the juridical procedure or
investigation, his legal representatives have placed relevant facts
regarding this crime before the authorities or have provided information
to establish the items under investigation.
3) The adoption, on the part of the legal person, prior to the beginning
of the trial, of efficacious measures to prevent the reiteration of the same
kind of crimes under investigation.
3.- Regarding the circumstances that increase criminal liability
Article 7.- Aggravating circumstance. An aggravating circumstance
of the criminal liability of the legal person is that he should have been
condemned for the same crime in the course of the five preceding years.
TITLE II
Consequences of the Declaration of Criminal Liability of the Legal
Person
1.-
Regarding penalties in general
Article 8.- Penalties. One or more of the following penalties may
affect legal persons:
1) Dissolution of the legal person or cancellation of legal personality.
This penalty will not be applicable to State corporations or to
private legal persons who render a public utility service whose
interruption might cause grave social and economic consequences or serious
damage to the community.
2) Temporary or permanent prohibition to celebrate acts and contracts
with organizations.
3) Total or partial loss of state benefits, or absolute
prohibition to receive them for a given period of time.
4) Fine on fiscal benefits.
5) The accessory penalties established in article 13.
Article 9. Dissolution of legal persons or cancellation of legal
personality. This dissolution or cancellation will produce the definitive
loss of legal personality.
According to its type and juridical nature, and in view of the lack
of a regulating legal text, the sentence that declares this dissolution or
cancellation will appoint the liquidator(s) in charge of liquidating the
legal person. Similarly, and under the same conditions, this/these
liquidator(s) will be required to draw up the acts and contracts required
to:
1) Put an end to all the activities of the legal person, with
the exception of those which are indispensable to the success of the
liquidation;
2) Pay off the liabilities of the legal person, including those derived
from the commission of the crime. The due dates of all these debts will be
taken as fully due, making them immediately receivable, and they should be
paid in full accordance with the credit preferences and priorities
established in Title XLI, Book IV of the Civil Code, especially as regards
the rights of the workers and the legal person, and make a pro rata
distribution of the remaining assets among shareholders, partners or owners,
according to their percentages of participation. The above will be
understood without prejudice to the rights of the affected parties to pursue
repayment of the damage suffered from the liable parties. In the case of
corporations, the terms established in article 133 bis of Law N° 18.046 will
be applied.
Nonetheless, when social interest requires it, the judge may issue
a founded ruling and order the sale or disposal of the totality or part
of the assets of the dissolved legal person; this sale or disposal will
be carried out as a public auction to the highest bidder. The auction should
be carried out in the presence of the judge.
This penalty can only be applied in cases of the aggravating
circumstance established in article 7. Similarly, it can be applied in the
case of sentencing for repeated criminal offences, as established in article
351 of the Criminal Procedure Code.
Article 10.- Prohibition to celebrate acts and contracts with State
corporations.
The prohibition consists in the loss of the right to take part as a
supplier of goods and services to State corporations.
The Court will apply the following scale in the determination of this
penalty:
1)Perpetual prohibition to celebrate acts and contracts with State
corporations.
2)Temporary prohibition to celebrate acts and contracts with State
corporations.
The duration of these will be graded as follows:
a) Minimum degree: from two to three years
b) Medium degree: from three years and one day to four years
c) Maximum degree: from four years and one day to
five years.
The prohibition will rule from the date of the execution of the
resolution. The Court will communicate this to the Directorate of
Public Purchases and Contracts. This Directorate will maintain an
updated record of the legal persons affected by this penalty.
Article 11.- Regarding the partial or total loss of fiscal benefits
or absolute prohibition to receive them for a determined period of time.
For the effects of this law, fiscal benefits will be understood as those
benefits given by the State or State corporations to subsidies without
reciprocal provision of goods or services, and especially to the subsidy
for financing specific activities, programs and expenditures inherent to
or associated to their application; these resources may be assigned either
by biddable funds or in accordance with permanent laws, subsidies or grants
in special areas or compensations established in special statutes or other
documents of a similar nature.
This penalty will be graded as follows:
1) Minimum degree: loss of twenty to forty percent of the fiscal
benefit.
2) Medium degree: loss of forty one to seventy percent of the fiscal
benefit.
3) Maximum degree:
the fiscal benefit.
loss of seventy one to one hundred percent of
In those cases in which the legal person is not a receiver of these
benefits, the sanction to be applied includes the absolute prohibition to
receive them for a period of two to five years, as from the date of execution
of their sentence. The Court must inform the Ministry of Finance Secretariat
and General Administration and the Undersecretariat of Regional Development
and Administration of the Interior Ministry of this decision, so it is duly
recorded in the central records of State collaborators and Municipalities who
are in charge of this aspect of administration, in accordance with the terms
of Law N°19.862.
Article 12.- Fiscal benefit fine.
follows:
This penalty will be graded as
1) Minimum degree: between two hundred to two thousand monthly tax units.
2) Medium degree: between two thousand and one to ten thousand monthly
tax units.
3) Maximum degree: between ten thousand and one to twenty
thousand monthly tax units.
The Court may authorize that the payment of this fine is made in
installments, within a time frame that does not exceed a period of twenty-four
months, when the amount involved can place the business of the sanctioned
legal person in jeopardy, or when this goes in favor of social interest.
Once the sentence has been established, the Court will communicate
the application of this fine to the National Treasury of the Republic,
who will be responsible for charging it and for its payment.
Article 13.- Accessory Penalties. In addition to the penalties
established in the above articles, the following accessory sanctions will
be applied:
Publication of an excerpt of the sentence. The Court will order the
publication of the resolutive section of the condemnatory sentence in the
Official Gazette or in any other national newspaper.
2) Confiscation. The product of the crime and other properties,
effects, documents and instruments will be confiscated.
3) In the cases in which the crime committed supposes the
investment on the part of the legal person or resources that exceed
its income, an accessory penalty will be established that is the deposit
in the national treasury of the equivalent of the amount invested
2. Regarding the determination of sentences
Article 14-. General Scale. The sentence imposed on the legal
person will be determined in accordance with the sentence established
for the corresponding crime in article 1, according to the following
scale:
General Scale of Penalties for Legal Persons
1.- Criminal penalties
a)Dissolution of the legal person or cancellation of the legal entity.
b)Prohibition to celebrate acts and contracts with State corporations
in their maximum to perpetual degree.
c) Loss of fiscal benefits in their maximum degree or absolute
prohibition to receive them for a period of three years and a day to
five years.
d)Fiscal benefit fine in its maximum degree.
In these cases, the accessory application of the penalties
mentioned in article 13 will always be applied.
2.- Penalties for felonies
a) Temporary prohibition to celebrate acts and contracts with State
corporations in their minimum to medium degrees.
b) Loss of fiscal benefits in their minimum to medium degrees
or absolute prohibition to receive these benefits for a period of
two to three years.
c) Fine in its minimum to medium degree.
In these cases, the accessory applications of the penalties
mentioned in article 13 will always be applied.
Article 15. Legal determination of the sentence applied to the crime.
The crimes sanctioned in articles 250 and 250 bis of the penal
Code and article 8 of Law 18.314 will receive the penalties
established in this law for minor crimes, as established in the
above article.
Criminal penalties will be applicable as established in the
preceding article for offences described in article 27 of Law 19.913.
Article 15. Liabililty modification circumstances. In the case of
felonies, in the concurrence of an extenuating circumstance and of no
aggravating counterpart, only two of the penalties established in Article 14
will be applied, one of which should be applied in its minimum degree. In
the case of crimes, the Court will only apply minimum penalties, should the
case warrants it.
In the case of the concurrence of the aggravating circumstance
contemplated in this law and no extenuating circumstance, in the case of
felonies the Court will apply all the penalties in their maximum degree
should the case warrant it, or dissolution or cancellation.
In the case of the concurrence of two or more extenuating circumstances
and no aggravating counterparts, in the case of felonies, the Court should
apply
a single penalty in its overall extension. In the case of crimes
it should apply two penalties contemplated for felonies.
In the case of the concurrence of various extenuating circumstances
and the aggravating circumstance contemplated in this law, this will
be rationally compensated with one of the extenuating circumstances,
and the penalties should be adjusted in accordance with the above
paragraphs.
Article 17.- Rules for the legal determination of the penalty. In order
to regulate the extent and nature of the penalties to be applied, the Court
should take into account the following criteria, keeping a detailed record
of the reasons for its ruling:
1) The amounts of money involved in the commission of the crime.
2) The size and nature of the legal person.
3) The economic capacity of the legal person
4) The degree of respect and fulfillment of the legal and regulatory
corpus and the compulsory technical rules to be observed in the exercise
of his habitual activity or business.
5) The extent of the damage caused by the
crime.
6) The gravity of the social or economic consequences, or of the
serious damage that the application of the sentence could cause on the
community in the case of State companies or companies that render public
utility services.
Article 18.- Transmission of criminal liability to the legal person.
In the case of joint or voluntary transformation, merger, absorption,
division or dissolution of the legal person responsible for one or more of
the crimes described in article 1, their liability derived from the
commission of previous crimes will be transmitted to the legal person(s)that
cause the crime, in accordance with the following guidelines all of which
is without prejudice to the rights of third parties acting in good faith.
1) In the case of the sentence being a fine, in the case of
transformation, merger or absorption of a legal person, the resulting
legal person will be responsible for the total amount. In the case of
division, the resulting legal persons will be jointly responsible for the
payment of this sum.
2) In the case that a profit-earning legal person is dissolved by
common consent, the fine will be transmitted to the partners and capital
shareholders, who will be responsible for the total of the liquidation
amount established.
3) In the case of any other penalty, the Judge will rule in
accordance with each case and its convenience.
In order to reach a decision in this sense, he should pay special
attention to the substantial continuity of material and human resources and
to the activity carried out.
4) The authorization established in paragraph one of article 559 of
the Civil Code may not be given from the moment a request is issued for a
formal investigative audience against a non-profit making legal person to
its final absolutory or condemnatory ruling.
3.-Extinction of the criminal liability of the legal person.
Article 19.- Extinction of the criminal liability of the legal person
who is eliminated for the same causes established in article 93 of the penal
Code, with the exception of those appearing in its number 1.
TITLE III
Proceedings
1.- Opening of the investigation into the criminal liability of the legal
person.
Article 20. Investigation of the criminal liability of legal persons.
If, during the investigation of one of the crimes established in
article 1, the Public Prosecutor is informed of the eventual
participation of one of the persons indicated in article 3,it will
extend its investigation in order to establish the liability of
the corresponding legal person.
Article 21.-
Application of regulations regarding the defendant.
The terms of articles 4, 7, 8 10 93, 98, 102, 183, 184
, 186, 193, 194 and 257 of the Criminal Procedure Code will be applicable,
especially the rights and guarantees to be exercised by the ay representative
of the legal person.
Article 22. Formalization of the investigation. When the Public
Prosecutor deems it convenient to formalize proceedings against a legal
person, he will request that the examining judge subpoenas the legal person’s
representative in accordance with the terms of article 230 and following
articles of the Criminal Procedure Court. The minimum requirement for this
procedure is the request for a formalizing investigation hearing or the
presentation of a legal requirement in accordance with the simplified
regulations in connection with the natural person who might affect the
liability of the legal person in accordance with paragraphs one and two of
article 3, with the exception of the cases described in article 5.
This request must also contain the individualization of the legal
representative of the legal person.
Article 23. Representation of the legal person. If when
subpoenaed to Court, the legal representative of the accused legal person
does not appear and does not justify this absence, the Court may order
his arrest until the hearing is carried out, which should take place
within a maximum period of twenty-four hours from the arrest.
If the legal representative is not available, the Public Prosecutor
will request that the Court appoints a public criminal defender, who will
act as ad litem curator.
In any case, the legal person may at all times appoint a defense
attorney of his choice.
When the Criminal Procedure Law demands the presence of the accused as
a condition or requirement for a Court hearing it is understood that this
requirement is fulfilled with the presence of the ad litem curator or defense
attorney, as the case may be. In both cases, the penalties established in
paragraph one are valid.
Article 24.- Inapplicability of the principle of opportunity. The
terms of article 170 of the Criminal Procedure Code will not be applicable
in the case of the criminal liability of the legal person.
Article 25.- Conditional suspension of the procedure. The
conditional suspension of the procedure can be established in those cases
in which there is no sentence or other conditional suspension of the
current proceeding in connection with the legal person accused of some
of the crimes included in the law.
As corresponds, the examining judge will rule that during the
period of suspension, which cannot be less than six months or longer
than three years, the legal person is subjected to the fulfillment of
one or more of the following conditions:
1) Payment of a given amount of money for fiscal benefit
2) Carry out a given community service.
3) Give periodic reports on his financial situation to
the institution that requires them.
4) Implement a program to apply the model of organization,
administration and supervision referred to in article 4.
5) Any other condition that should be considered appropriate, and
suggested by the Public Prosecutor.
In those cases in which the judge rules the measure established
in 1) he should communicate this decision to the National Treasury of
the Republic.
Article 26.- Determination of the procedure applicable to the criminal
liability of the legal person. If according to the rules of simplified
procedure, the Public Prosecutor accuses or requires the enforcement of the
sentences applicable for felonies in their minimum degree, the hearing and
ruling will be carried out in accordance with the simplified procedure rules.
In those cases in which the Public Prosecutor accuses and requests
sentences of felony in its medium degree, the hearing and ruling will be
carried out in accordance with the rules of oral hearings as established
in Title III of Book II of the Criminal Procedure Code.
If the Public Prosecutor accuses and requires the natural and legal
person in a same act, the procedure applicable to natural persons will be
followed. This will not be applicable in the case of criminal sentences.
Regarding the criminal liability of legal persons, the payment
procedure will be invalid.
Article 27.- Abbreviated Procedure. The procedure established in
articles 406 and following articles of the Criminal Procedure Code will
be applicable to establish liability and impose the sanctions established
in this law.
This procedure will be followed to hear and rule regarding the facts
that the Public Prosecutor requires to rule one or more felony sentences.
The Court may not impose a sentence that exceeds or is more
unfavorable than the sentence issued by the Public Prosecutor.
Article 28.- Defense of legal persons. All legal persons that cannot
obtain defense attorneys on their own, will have the right to request the
designation of a public criminal defense attorney.
Article 29. Suspension of the sentence. If in its sentencing, the Court
ruled a sentence for felony in its minimum degree, it may by means of a founded
and exceptional decision, dispose of the suspension of the sentence and its
effects for a period of no less than six months or no more than two years
when taking into account the number of workers or net annual sales or exports
of the affected company.
of confiscation.
In this case, the Court may set aside the sentence
In the case of State companies or companies that render public utility
services whose interruption might have grave social and economic consequences
or cause serious damage to the community, the judge may rule the suspension
of any of the sentences imposed.
After the period established in paragraph one comes to an end, without
the legal person being subjected to a new requirement or formalization of
the investigation, the Court will leave the sentence without effect and will
rule the definitive dismissal of the trial.
This suspension does not affect the civil liability derived from the
crime.”
Article Two: The following paragraph two is inserted into
article 294 bis of the Penal Code:
“When the association was formed through a legal person, an
additional sentence of the dissolution or cancellation of their legal
personality will be imposed as an accessory consequence to the
sentence.”
Article Three: In article 298 of Law N° 19.913 , the creation of the
Financial Analysis Unit is introduced into the following second paragraph,
modifying diverse legal considerations regarding money and asset laundering
“When the association was formed through a legal person, an
additional sentence of the dissolution or cancellation of their legal
person
will be imposed as an accessory consequence to the sentence.”
This document has been approved and passed be me, so be it
promulgated and put into force as a Law of the Republic,
Santiago 25 November 2009. MICHELLE BACHELET JERIA, PRESIDENT OF THE
Republic, Andrés Velasco Brañes, Minister of Finance.- Edmundo Pérez Yoma,
Interior Minister. Mariano Fernández Amunátegui, Minister of Foreign
Affairs. Carlos Maldonado Curti, Minister of Justice
I transcribe for your knowledge and perusal. Yours faithfully
María Olivia Recart Herrera, Undersecretary of Finance.
WARNING: This translation is solely for purposes of disclosure
and has no official status. Chilean Law are only published in
its official language which is Spanish , with no official
versions in any other language. If any discrepancies exist, the
Spanish version of the Law prevails.
ADVERTENCIA: La presente traducción es exclusivamente para fines
de divulgación y no tiene carácter oficial. Las leyes chilenas
se publican únicamente en su idioma oficial que es el español,
no existiendo versiones oficiales en otros idiomas. En caso de
posibles discrepancias, prevalecerá la versión en idioma
español.