Fraudulent Disposal of Company Assets in Marbella

Typical conducts of fraudulent disposal

Judicial practice has identified a recurring catalogue of conducts giving rise to this offense, whose common denominator is exploiting the position of director to divert value from the company's assets toward the director's own assets or toward related third parties: the sale of company assets to related persons or companies for a price manifestly below market value — so-called asset stripping (vaciamiento patrimonial); granting loans to shareholders or group companies without real security, without interest, or without any genuine provision for repayment; diverting business opportunities from the administered company toward parallel structures controlled by the director themselves or their associates; and setting disproportionate remuneration for the director without statutory basis or approval by the shareholders' meeting, under the so-called "link doctrine" (doctrina del vínculo) established by the Supreme Court. Each of these modalities requires specific expert evidence — asset valuation, market conditions of the loan, or proportionality of remuneration — which we build from the outset of the proceedings.

The boundary with misappropriation: the "point of no return"

The correct classification between unfair administration and misappropriation (apropiación indebida) under Article 253 of the Criminal Code — which we address in our specific content on that offense — is decisive when the fraudulent disposal concerns money or other fungible assets. The settled case-law criterion looks to whether the loss of the assets is definitive or not:

"...quien incorpora a su patrimonio... una cosa mueble que ha recibido con obligación de restituirla, comete un delito de apropiación indebida."

(The Court held that whoever incorporates into their own assets a movable item received under an obligation to return it commits the offense of misappropriation.) When the director's fraudulent disposal does not involve the irreversible expropriation of the assets — but rather an abusive use of management powers that harms the company's assets without definitively exhausting the disposed asset — the correct classification is unfair administration, carrying an identical penalty in its basic form but with different premises and defense strategy. We work through this distinction systematically because of its direct bearing on the legal classification and, at times, on the very viability of the criminal action.

The "business judgment rule" as the cornerstone of the defense

The central element of our defense strategy in these proceedings is the application of the business judgment rule: management decisions taken in good faith, with sufficient information, and without any conflicting personal interest, cannot be reclassified as criminally reproachable even if the economic outcome was unfavorable for the company. Ordinary business risk — inherent to any commercial activity — is not equivalent to unfair excess in the exercise of administrative powers. Proving that the questioned transaction responded to a reasonable management criterion, backed by technical reports or by the economic context at the time, and that there was no hidden personal benefit for the director, constitutes the most effective route to exclude criminal liability in economically risky but non-criminal transactions.

The aggravated form (Articles 249 and 250 CC by reference)

Article 252 of the Criminal Code refers, for its penalty, to Articles 249 and 250 of the Criminal Code, such that the basic offense is punished with a prison sentence of six months to three years when the harm exceeds 400 euros, and is aggravated — with a prison sentence of one to six years — when any of the circumstances of Article 250 of the Criminal Code are present: harm exceeding 50,000 euros, particular seriousness given the economic situation in which the victim is left, abuse of the personal relationship existing with the injured party, or the offense involving basic necessities or assets of recognized social utility. Frequently added to this is the penalty of special disqualification from engaging in commerce or holding management positions for up to six years, provided for in Article 297 of the Criminal Code, whose professional impact on the client we always assess as an integral part of the defense strategy.