Article 31 Spanish Criminal Code: acting on behalf of another

Article 31 of the Spanish Criminal Code transfers to the de facto or de jure director, and to anyone acting on behalf of another, the personal conditions required by the offence that are present in the represented party. It is the route by which the person who decides for the company answers personally in special offences such as tax or corporate crime.

Wording of Article 31 of the Spanish Criminal Code

Conditions of application

1. Acting as de facto or de jure director of a legal person, or in the legal or voluntary representation of another.
2. A special offence whose conditions, qualities or relationships the definition requires in the perpetrator.
3. The presence of those circumstances in the represented entity or person, not in the actor.
4. Personal performance of the conduct: the provision does not create liability for the office held.

Defence strategy

Denying de facto directorship. The figure requires real and autonomous exercise of management functions. A person executing instructions or performing subordinate tasks is not a de facto director, however broad their formal powers of attorney.

Requiring conduct of one’s own. Article 31 does not allow conviction for the office alone. The specific decision taken by the accused and their control over the act must be proved; effective delegation excludes liability of the diligent delegator.

Distinguishing Article 31 bis. Liability of the individual under Article 31 and of the company under Article 31 bis are independent and cumulative, but not interchangeable. Confusing the two is a frequent defence issue.

Challenging the mental element. In tax and corporate offences, knowledge of the concealed or falsified data must be proved in the representative personally; their position on the board is not enough.

• Article 31 bis: corporate criminal liability
• Article 305: tax fraud
• Article 290: false company accounts
• Corporate crime lawyer in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.