As Law No. 20,393, which “Establishes Criminal Liability for legal entities arising from certain felonies of money laundering, terrorism financing and bribery” (the Law or the Statute) was published in the Official Gazette on December 2nd, 2009, it will be five years old in just a few days. Being Chile a country which has historically followed the continental criminal systems, Law No. 20,393, by establishing the criminal liability of legal entities, substantially modified the country’s legal tradition, which previously followed the principle of ” Societas delinquere non potest“. These are the Law’s main characteristics: Firstly, the Statute is fragmentary, in the sense that it only addresses 3 “base” felonies:
- bribery (including that of foreign public officials);
- financing of terrorism; and
- money laundering.
Nonetheless, we believe that lawmakers, in the future, will extend the list to an ample catalog of economical, environmental, tax and IP penal offenses. The Law’s scope is very broad in connection to the types of legal entities to which it applies to, since both legal entities governed by Private Law and State-owned companies are covered by it. Again, the Statute’s scope is also very comprehensive regarding the individuals who, within the structure of legal entities, may perpetrate felonies in benefit of the company that, then, may implicate the company; it includes: owners, controllers, parties in charge, main executive officers, representatives or whoever performs management and monitoring activities, as well as any individuals under direct control or monitoring from any of the abovementioned. As an element of the felony, the circumstance that the legal entity has failed to follow the detailed crime prevention model established by the Law is of the utmost importance. Still, we ought to remark that adopting such prevention model is voluntary. Finally, even though implementing the legal prevention model set by the Law is voluntary, the protection that said model grants, when faced with the State’s punitive power, makes it highly advisable to adopt it. The latter is particularly true, as during the last months we have finally witnessed criminal investigations in which Public Prosecutors, in direct application of Law 20,393, have criminally prosecuted companies.