Criminal lawPractical guidesShareholder disputes in Spain: when they cross the criminal line

One shareholder blocks the general meeting. Another appoints himself sole director. A third incorporates a parallel company and transfers the clients to it. A shareholder dispute is, first and foremost, a commercial-law dispute. But there is a point at which it crosses the criminal line, and knowing where that point lies is what separates a criminal complaint that prospers from one that is dismissed.

First rule: criminal law is not a negotiating tool

It is the permanent temptation of the cornered minority shareholder: filing a criminal complaint to force an exit on acceptable terms. And it is an expensive mistake. A complaint without a solid basis is not merely dismissed: it strengthens the opponent’s position, casts you as a reckless accuser and may expose you to proceedings for false accusation or to a claim for damages. The courts are full of shareholder disputes that got worse because someone went to the criminal courts too quickly. That is why the first thing we do is not to draft the complaint. It is to analyse whether there is one to draft.

The conducts that do have criminal traction

Disloyal administration (Article 252 of the Spanish Criminal Code). The central figure. The director who exceeds his powers and damages the company’s assets. He does not need to take anything: exceeding his authority and causing damage is enough.

Misappropriation (Article 253). When he does take something: diverted funds, collections never paid into the company, corporate assets absorbed into his personal estate.

Corporate offences (Articles 290 to 294). Falsifying the annual accounts, imposing abusive resolutions through a fictitious majority or denying a shareholder the exercise of his rights of information, participation or control. This last one is the most overlooked and the most useful for the minority shareholder who has been stalled for months.

Concealment of assets (Article 257). Stripping the company or the personal estate to evade liabilities. It is the final phase of the dispute and, for the injured party, often the most effective route: it allows interim measures to be requested and the transfers to be declared void.

Documentary forgery in minutes, certifications or accounts filed with the Companies Registry.

These disputes are won with documents, not with narratives

Evidence in these matters is documentary and accounting evidence, and it is built before taking the first step:

• Annual accounts and their filing, or the failure to file them, which already says a great deal.
• Corporate books and minutes, contrasted with what actually happened.
• Bank movements and their traceability.
• Contracts with related parties, compared against market prices.
• The registry trail of the companies of the director and his family.
• Emails and messages, which usually contain the decisions that never reached any minutes.

The sequence that works: commercial courts first, criminal courts second

It is the strategy that succeeds most often and the one least applied. Exercising the shareholder’s right to information first, challenging the resolutions or bringing the corporate liability action produces two extremely valuable effects. The first: it forces the director to give explanations and to produce documentation, so the civil proceedings themselves build the evidence that will later sustain the criminal case. The second: if the director lies or falsifies documents to defend himself at that stage, he commits a new offence, easier to prove than the original one. Arriving at the criminal courts with the facts already established in civil proceedings changes the odds completely.

And if you are the one under investigation

We also take on the opposite position, which is just as frequent: the disgruntled shareholder who turns a management disagreement into a criminal complaint. The defence rests on establishing business judgement: that the decision was taken with sufficient information, without any personal interest, within the corporate purpose and under an adequate procedure. Properly documented, that defence closes the criminal route.

Related: shareholder disputes, corporate offences and criminal defence of company directors.