Criminal liability of the legal entity

Since 2009, Chilean criminal legislation establishes the criminal liability of legal entities for certain crimes committed by natural persons (for example, bribery of a public official to obtain a permit for the legal entity). The applicable penalties depend on the type of crime and other circumstances, and include fines, loss of tax benefits, disqualification from contracting with the State and even the dissolution of the legal entity.

In August 2023, Law No. 21,595 was published in the Official Gazette, which toughened this regime:

• The catalog of crimes for which a legal entity can be declared responsible was considerably increased (previously the main crimes consisted of bribery of public officials and between individuals, reception, money laundering, incompatible negotiation, misappropriation and unfair administration, among others). others), adding crimes such as interference, disclosure and improper use of trade secrets, failure to withhold or pay pension contributions without the consent of a worker, declaring taxable or gross income less than the actual one, crimes against intellectual property, attacks against the environment and others.
• Prior to the reform, it was required that the crime committed by the natural person be in the direct or indirect interest of the legal entity. With the reform, this requirement was eliminated, excluding only crimes committed exclusively against the legal entity (for example, a theft within the company).
• It is established that the natural persons for whose crimes the legal entity is responsible are not only those who have a position in it, but also the natural persons who provide services by managing matters before third parties, or who belong to a company that fulfills that function.

Additionally, the aforementioned reform aggravated the responsibility of natural persons who commit crimes that are classified as economic. This is of particular relevance for company executives and those who perform functions where there is a risk of committing this type of crime.

Implementation of crime prevention model and compliance programs

To be exempt from criminal liability for the crimes that give rise to it, companies must prove that they have fulfilled their management and supervisory duties. These duties are considered to have been fulfilled when, prior to the commission of the crime, the company has adopted and implemented organization, administration and supervision models to prevent it, which means: i) Identifying activities or internal processes that entail risks of commission of crimes; ii) Establish protocols and procedures to prevent and detect criminal conduct in the context of the company's activities, including safe reporting channels and internal sanctions; iii) Assignment of one or more people responsible for applying the protocols, who have due independence; and iv) Periodic evaluations of the model by independent third parties, as well as improvement or updating mechanisms.

Consequently, for the correct implementation of a crime prevention model, a prior process (audit) of identifying the criminal risks to which the company is exposed is essential, paying special attention to its internal processes.

Both this audit and the adoption of a crime prevention model will, in turn, facilitate the development of a comprehensive compliance program that covers relevant risks for the company in areas that go beyond criminal matters (for example, labor, tax, environmental , contractual, extra-contractual and others), which will allow the company to avoid legal breaches or reduce their consequences.

Therefore, in addition to a crime prevention model, it is advisable to have a comprehensive regulatory compliance system that includes: i) code of ethics; ii) protocols and procedures on risk management; iii) clauses to be incorporated into employment contracts and other contracts; iv) modification of the Internal Regulations of Order, Hygiene and Safety; and v) development of other instruments as pertinent.

Finally, ongoing training is a key element given that the law requires that the crime prevention model be effectively implemented in the company. More than formal requirements, the aim is to generate a true culture of compliance and integrity.