Main characteristics of the crime of unfair administration
The administrator's criminal responsibility can be framed within the punitive types referring to the crime of unfair administration. In this article, lawyers specializing in criminal law differentiate between different crimes and objective types.
Difference between crimes of misappropriation and unfair administration
The Supreme Court differentiates both crimes, due to the degree of intensity of the wrongful act. Having misappropriation when there is a total expropriation of the property and unfair administration when the action is not characterized by a definitive breach.
Target type problems
Excess in the powers of administration
Specialist lawyers must analyze what is meant by excess in the exercise of the powers of administration. The crime of unfair administration refers to the abuse of a limited power of administration.
What is needed is not that the administrator is empowered to carry out a specific act, but that he or she acts as a de facto administrator and that his or her actions cause harm to third parties.
Acts of the administrator
Second, attorneys must find out what acts and conduct are considered relevant for criminal purposes.
Therefore, it should be understood that the active subject of the criminal offense is not the administrator of the estate itself, but rather any person who has the power to administer, the person who has these capacities and functions being able to commit the crime, independently of the name of your position.
Unfair administration practices are considered to be acts of alienation to third parties for a lower price than the real one, the self-concession of loans with more advantageous conditions than those in the market, the granting of doubtful loans without the adoption of guarantees, the awarding of contracts to in favor of bidders who offer conditions worse than those of the other participants.
Among other types of behavior, we can also find the revelation of secrets; violation of competition rules and non-compliance with applicable laws in the activity sector; the adoption of a decision damaging to the patrimony due to a conflict of interest; the adoption of a decision on the estate without taking into account information that should have been taken into account; the absolute neglect of its obligations by the administrator or the participation in speculative or high risk businesses.
Powers and duties of the administrator
In order to specify the duties of any administrator, general principles must be followed. Supporting us in art.1899 CC using the formula of the "diligence of a good father of a family", or for example also art.1094 CC by stipulating that he who "is obliged to give something is also to keep it with the diligence of a parent ».
In conclusion, any action by the administrator that infringes his duties, may constitute a crime of unfair administration, provided that damage occurs. However, the breach of duty and the production of damage are necessary but not sufficient requirements for the typical conduct.
Breaches of surveillance duties
Surveillance duties can be very broad: from control obligations in all kinds of activities; duties of the administrator in the prevention of criminal, labor crimes, etc., powers of surveillance conferred on a specific body of surveillance, etc.
Damage in crime
The final element of the target rate is the production of injury. There must be a causal relationship between the excess of functions and the production of damage. Now, for damage to the administered patrimony we must understand a patrimonial decrease.
It should be recalled that in STS 915/2005, it was stated that the concept of damage should not be limited to a negative accounting balance, but should be addressed to other factors such as the legality of the action or the purpose pursued by the author.
In conclusion, it is allowed to include damages such as the decrease in assets, the frustration of an increase in assets or the application of the assets for a purpose not authorized to the interests of the managed.