Article 252 Spanish Criminal Code: Unfair Administration

Article 252 of the Spanish Criminal Code punishes those who, having powers to administer the property of another arising from law, entrusted by an authority or assumed under a legal transaction, breach those powers by exceeding them and thereby cause loss to the property administered. It is the provision applied to company directors, trustees, guardians and agents, and it is distinguished from misappropriation in article 253 by its object: here the accused does not keep the property, he manages it against the interest of its owner.

Wording of Article 252 of the Spanish Criminal Code

Elements of the offence

1. Powers of administration over property belonging to another, arising from law, from an authority or from a legal transaction such as a company appointment, a power of attorney or a management contract.
2. A breach of those powers by exceeding them. Exercising a power badly, unwisely or unsuccessfully is not the same as exceeding it.
3. Loss to the property administered, which must be quantified and causally attributed to the excess.
4. Intent, comprising awareness of exceeding the powers and of the harm that will follow.

Defence strategy

Business judgment within the powers held. The offence punishes exceeding powers, not exercising them badly. A decision that fell within the administrator’s remit, that was taken with the information then available and that turned out badly, is not this offence, however severe the loss. The defence reconstructs the decision as it stood at the time, with the reports and advice relied on, since hindsight is the principal risk in this class of prosecution.

Authorisation and ratification. Where the act was authorised by the general meeting, by the board, by the principal or by the person entitled, or was ratified afterwards, the excess disappears. Minutes, correspondence and the course of dealing between the parties are decisive, and in family companies the practice regularly departs from the formal record, which is itself evidence of what was permitted.

Quantification of the loss. The loss must be the consequence of the excess, not the whole of a transaction. Where value was received, where the operation produced a benefit in another period, or where the sum has been repaid, the figure falls, and with it the classification under article 250 and the possibility of suspension. An accounting expert report is ordinarily necessary.

The boundary with misappropriation and with company offences. Where the accused kept the property for himself, the provision is article 253; where he falsified the accounts, article 290; where he denied a member his rights, article 293. Prosecutors habitually charge several of them cumulatively over a single course of conduct. Establishing the correct classification, and the concurrence under article 77, materially reduces the aggregate exposure.

• Article 253: misappropriation
• Article 290: false company accounts
• Internal company fraud: defence service
• Spanish-language entry

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.