Criminal defence throughout Spain · offices in Madrid and Alicante
A director’s indictment has a characteristic of its own: business decisions are judged years later. What was a reasonable management decision in its context is examined retrospectively as a possible offence.
In brief. Article 31 extends authorship to the de facto or de jure director, but does not turn the office into automatic guilt. The defence requires reconstructing the economic context of each decision, the advice received and the real distribution of functions in the organisation.
A director’s indictment has its own characteristic: business decisions are judged with years of distance. What was a reasonable management decision in its context, a related-party transaction, a refinancing, a tax deferral in a cash crisis, is examined retrospectively as a possible offence. The defence requires reconstructing the economic context of each decision, the advice received and the real distribution of functions in the organisation.
Article 31 extends authorship to the de facto or de jure director, but it does not turn the office into automatic guilt: real intervention in the specific decision, or the breach of a duty of control demandable of the specific position, must be proven. That is why the defence of executives demands criminal lawyers who understand the company.
| Question | Rule | What is examined | Defence focus |
|---|---|---|---|
| Real intervention | 31 CP | Who took the specific decision | Minutes, powers and the actual chain of decision |
| Duty of control | 11 CP | What supervision was demandable | Structure, resources and documented delegation |
| Business judgment | 226 LSC | Good faith, information, procedure | Prior reports and external advice |
| Delegation | Case law | Real, funded and supervised | A signature on an organisation chart is not delegation |
| Position on the board | Case law | Executive versus non-executive | Information available at each moment |
| Advice received | Records | Expert opinions before deciding | The document that excludes intent |
| D&O policy | Contract | Defence costs and bonds | Early notification preserves cover |
| Separate defences | Practice | Company and director may diverge | One lawyer for all is often a paid-for conflict |
The exposure depends on the offence charged and the specific facts; this overview is indicative.
The useful defence of an executive is built backwards: reconstructing the economic context in which the decision was taken, the information available at that moment, the advice received and the real distribution of functions. The board member who decided with prior reports, within a documented procedure and without personal interest is protected by business judgment; the one who cannot prove any of it is exposed. We prepare that file before it is demanded, and we coordinate the criminal defence with the D&O policy and, where interests diverge, with the company’s separate defence. We apply LIWARD, Legal Intelligence Warfare for Defense.
Directors answering for management decisions: real intervention, context and business judgment.
Non-executive, proprietary and independent directors: the duty of control demandable of each position.
De facto directors and senior managers: the reach of Article 31 and the delegation actually held.
Family-company administrators where formal and real roles diverge: documenting who decided what.
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