In brief
- Not every outflow of money is an offence: you need to establish who ordered it, with what powers, for what purpose and whether the money came back or could have come back.
- Depending on the facts, it may be breach of fiduciary duty (administración desleal, Article 252 of the Spanish Criminal Code) or misappropriation (apropiación indebida, Article 253).
- In the first hours: limit the banking powers of the person involved, secure the systems and preserve the documentation intact.
- In the criminal proceedings themselves the company can recover what was diverted, including from third parties who benefited, and request precautionary measures such as bail or attachment from the outset.
- It is unwise to negotiate repayment informally, to spread accusations or to access other people’s devices or accounts without control.
Discovering that a partner or director has transferred company money to their personal accounts, to another related company or to third parties can trigger immediate alarm. However, before making public accusations or taking hasty decisions, it is advisable to organise the response. The initial aim should be twofold: to stop the loss from continuing and to build a solid documentary basis for claiming liability.
Not every outflow of money is automatically an offence
A transfer to another group company, a loan to the partner or an authorised payment may have a legitimate business explanation. The problem arises when the transaction has no real purpose, is carried out for private benefit, is concealed from the other partners or causes unjustified loss to the company.
The criminal classification will depend on the specific facts. Article 252 of the Spanish Criminal Code punishes anyone who, having powers to manage third-party assets, exceeds those powers and causes loss to the assets managed. In a corporate case, this may be relevant when the director uses their powers of disposal against the company’s interest.
There may also be misappropriation. Article 253 of the Criminal Code covers anyone who appropriates, for themselves or for a third party, money or property received under a title that obliged them to hand it over or return it. The practical difference will depend, among other factors, on whether the transaction was an abusive use of the assets with possible return or a definitive disposal for one’s own benefit or that of a third party.
It is therefore not enough to observe that money left the bank account. It must be established who ordered the transaction, with what powers, for what purpose, whether there was authorisation, what documentation supported it and whether the money came back or could reasonably have come back to the company.
What to do in the first hours
The company should immediately consider limiting or reviewing the banking powers of the director or employee involved, always respecting the rules of representation in force. It is also advisable to secure the IT systems, change compromised credentials and preserve emails, accounting files, contracts, invoices and access logs that could disappear or be altered.
Deleting, modifying or reconstructing documents is not advisable, even if they appear damaging. Information must be preserved intact, recording who obtains it and when. An isolated copy of a bank statement may be insufficient if its origin or integrity is later disputed.
It is useful to prepare an internal chronology of the transactions: date, amount, source account, destination account, person who ordered the payment, accounting entry, associated documents and provisional loss. The review should extend to other accounts, cards, cash, related companies and transactions carried out during the same period.
The importance of an orderly internal investigation
Before filing a complaint (denuncia) or a private prosecution (querella), the company should clarify what it knows for certain and what is still hypothesis. An accounting or forensic report can help separate irregular payments from simple administrative errors and quantify the loss. It may also reveal whether other people were involved, whether invoices or accounting entries were falsified and whether apparent loans were used to conceal transfers.
The decision to report should not be based solely on suspicion, nor should it necessarily wait for a complete reconstruction. It may be advisable to go to the court when there is a risk of evidence being concealed, of further disposals of assets or of the person responsible disappearing. A complaint brings the facts to the attention of the authorities, whereas a querella may allow the company to take a more active part in the proceedings as private prosecutor (acusación particular), with a lawyer and a procurador.
The company should also consider its internal position. If the director under investigation still controls the documentation, it is advisable to consider their removal, calling a general meeting or the appropriate corporate measures.
Recovering the money in the criminal proceedings themselves
Criminal proceedings do not only seek to punish the person responsible: they also allow the company to recover what was diverted. Where the criminal action is brought, the civil action is deemed to be brought as well, unless it is waived or expressly reserved (Article 112 of the Criminal Procedure Act), and civil liability arising from the offence comprises restitution, repair of the damage and compensation for losses (Article 110 of the Criminal Code). Restitution extends to the property even if it is held by a third party, unless the third party acquired it in a way that makes it irrecoverable (Article 111 of the Criminal Code). And anyone who has shared in the proceeds of the offence free of charge (a título lucrativo) — for example, a related company that received the funds without consideration — is obliged to return them up to the amount of their share (Article 122 of the Criminal Code).
From the investigation stage, precautionary measures may also be requested to secure assets, accounts or financial liabilities, particularly where there are signs that the perpetrator may conceal, transfer or dissipate their assets: bail or a security deposit (fianza) and, if it is not provided, the attachment of assets (Article 589 of the Criminal Procedure Act) and, in the abbreviated procedure, the measures governed by the Civil Procedure Act, such as preventive attachment, a preventive entry in public registers or an order to cease an activity provisionally or to refrain from certain conduct (Article 764 of the Criminal Procedure Act, in conjunction with Article 727 of the Civil Procedure Act). These measures are not automatic: they must be sought with a specific justification of the risk and of the need to secure the liabilities that may be declared.
All of this is obtained in a single set of proceedings, in which the investigating judge may also order investigative steps — such as requests for banking information or an expert accounting report — that the company cannot obtain on its own.
What the company should not do
It is unwise to negotiate repayment informally in exchange for silence without first analysing the legal, tax and corporate consequences. Nor is it prudent to spread accusations among clients, employees or suppliers, or to access personal devices or other people’s accounts without control. A disorderly reaction can create new conflicts, destroy evidence or harm the company’s own procedural position.
The safest course usually consists of preserving the information, cutting off the financial risk, provisionally quantifying the loss and obtaining specialist criminal law advice, with the necessary expert accounting support. The sooner these steps are taken, the better the chances of reconstructing what happened and protecting the interests of the company and its partners.
Frequently asked questions
Is it an offence for the director to transfer company money to another related company?
Not necessarily. It may have a legitimate business explanation. The problem arises when the transaction has no real purpose, is carried out for private benefit, is concealed from the other partners or causes unjustified loss to the company.
What is the difference between breach of fiduciary duty and misappropriation?
It depends, among other factors, on whether the transaction was an abusive use of the assets with possible return (breach of fiduciary duty, Art. 252 Criminal Code) or a definitive disposal for one’s own benefit or that of a third party (misappropriation, Art. 253 Criminal Code).
Can the company recover the money in the criminal proceedings?
Yes. Where the criminal action is brought, the civil action is deemed to be brought as well, unless waived or reserved (Art. 112 Criminal Procedure Act), and it comprises restitution, repair and compensation (Art. 110 Criminal Code), including against anyone who benefited free of charge (Art. 122 Criminal Code).
Can the assets of the person responsible be frozen during the investigation?
Precautionary measures such as bail and attachment of assets (Art. 589 Criminal Procedure Act) or those of the Civil Procedure Act (Art. 764 Criminal Procedure Act) may be requested. They are not automatic: the specific risk must be justified.
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