The crime of taking property is consummated when the debtor, knowing of his debts, he places himself in a situation of insolvency to avoid his obligation to pay them.
For the crime to exist, it is not necessary to cause a damage real to the creditor. The concealment of assets is enough by the debtor with the intention of harming the creditor.
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Therefore, the legal good Protected with this criminal offense is the creditor's right to execute and make effective his credit.
Requirements of the crime of lifting property
There are several requirements established by the supreme court so that it can be considered a crime of taking property:
- that there is a monetary obligation borne by the debtor prior to the commission of the crime, which may be public or private.
- That there is a prior right of credit in favor of the creditor, which may be a Physical person or public or private legal.
- Let there be a destruction or concealment of assets by the debtor that prevents the realization of the credit.
- That the debtor is in a situation of insolvency (whether partial or total, as well as real or fictitious) as a consequence of the destruction of property that has been carried out and which makes it difficult to collect from creditors.
- that there is a intention to harm the creditor on the part of the debtor. Thus, in this crime it is not necessary that harm be caused by the crime but the mere intention to harm is sufficient.
Types of lifting of assets and penalties
We can distinguish the following types of crimes according to the conduct carried out:
Basic type and specific type
Article 257.1 and 2 of the Penal Code refer to the basic type and the specific type, we will analyze them below.
The provisions of these sections of the article 257 of the Penal Code will be applicable to:
- Any type of obligation or debt whose payment is attempted to be evaded. That is, the payment of a loan, a mortgage, debt with a third party….
- The economic rights of workers. That is to say, there is seizure of assets if the employer, with the intention of avoiding payment to the workers, conceals his assets.
- Whether the creditor is an individual or a legal person, public or private.
When a person takes possession of their assets to the detriment of creditors.
Article 257.1.1º of the Penal Code
To rise means to place oneself in a situation of insolvency, that is to say hide assets to avoid liability to which they are subject.
For example, if a debtor sells all the assets he owns, with the aim of preventing the creditor from collecting his debt, he is committing asset seizure.
The uprising of basic goods will be punished with prison sentences of 1 to 4 years and fine of 12 to 24 months.
The punished behaviors are:
Delay or prevent judicial resolutions:
Any person who carries out acts of asset disposal (sell, assign, donate...) to delay, hinder or prevent a embargo or a enforcement procedure initiated or foreseeable initiation, will be punished for lifting property.
Whoever, for the same purpose, carries out any act of property disposal or generating obligations that delays, hinders or prevents the effectiveness of an embargo or an executive or enforcement procedure, judicial, extrajudicial or administrative, initiated or foreseeable initiation.
Article 257.1.2º of the Penal Code
Avoid paying civil liabilities derived from a crime:
Anyone who carries out acts of disposal (selling, donating, assigning...) of their assets with the aim of avoid paying civil liabilities (damages) derived from a crime.
The same penalty will be punished for anyone who carries out acts of disposition, contracts obligations that reduce their assets or hides by any means elements of their assets on which the execution could be effective, with the purpose of evading the payment of civil liabilities derived from a crime. that he may have committed or for which he should be held accountable.
Article 257.2 of the Penal Code
This specific type will also be punished with penalties of prison of 1 to 4 years and fine of 12 to 24 months.
Article 257.3 of the Penal Code establishes a type aggravated, when:
- It is a debt or obligation under Public Law.
- He creditor is a public legal entity.
The punished behaviors are:
- Avoid payment of public law debts.
- Avoid paying monetary obligations derived from a crime against the Treasury or Social Security.
The provisions of this article will apply regardless of the nature or origin of the obligation or debt whose satisfaction or payment is attempted to be evaded, including the economic rights of workers, and regardless of whether the creditor is an individual or any person. legal, public or private.
Notwithstanding the foregoing, in the event that the debt or obligation to be avoided is governed by public law and the creditor is a public legal person, or in the case of pecuniary obligations derived from the commission of a crime against the Public Treasury or Social Security, the penalty to be imposed will be imprisonment of one to six years and a fine of twelve to twenty-four months.
Article 257.3 of the Penal Code
The aggravated seizure of property will be punished with prison sentences of 1 to 6 years and fine of 12 to 24 months.
He article 258 of the Penal Code regulates an attenuated type, when:
In a judicial or administrative enforcement procedure, the debtor presents an incomplete or false list of assets or assets and thereby delay, make difficult or prevent payment to the creditor.
However, the debtor who, before the court discovers the incomplete nature of the declaration of assets, presents a truthful and complete declaration will not be prosecuted.
1. Anyone who, in a judicial or administrative execution procedure, presents to the authority or official in charge of execution an incomplete list of assets or assets will be punished with a prison sentence of three months to one year or a fine of six to eighteen months. or mendacious, and thereby delay, make difficult or prevent the creditor's satisfaction.
The list of assets or assets will be considered incomplete when the executed debtor uses or enjoys assets owned by third parties and does not provide sufficient justification of the right that protects said enjoyment and the conditions to which it is subject.
2. The same penalty will be imposed when the debtor, required to do so, fails to provide the list of assets or assets referred to in the previous section.
3. The crimes referred to in this article will not be prosecutable if the author, before the authority or official had discovered the mendacious or incomplete nature of the declaration presented, appeared before them and presented a true and complete declaration of assets or assets. .
The attenuated lifting of assets will be punished with prison sentences of 3 months to 1 year and fine of 6 to 18 months.
Responsibility of legal entities in the collection of assets
The crime of taking property can be carried out by both natural and legal persons, for example a limited company.
When a legal person is responsible for the crime of removing property, the following penalties will be imposed:
- Fine of 2 to 5 years If the crime committed by the Physical person He is scheduled for a prison sentence of more than five years.
- A fine from 1 to 3 years if the crime provides for a sentence of more than 2 years.
- 6 month fine up to 2 years in the rest of the cases.
Some forms of asset lifting
The acts of asset disposal carried out by the debtor that make it difficult or prevent the debtor from collecting his credit constitute seizure of assets.
As an example we can cite the following forms of asset collection:
- Sale of the debtor's assets.
- Sale in which the payment is fictitious.
- Marriage settlements agreeing on the marital economic regime of separation of assets in order to attribute the assets to the non-debtor spouse.
- Divorces fictitious, with the same previous purpose.
- Sale or donations by the debtor in favor of relatives or friends.
- Concealment or destruction of personal property.