Devesa 1407

Company directors may be criminally liable for the offence of falsification of a commercial document when they certify resolutions adopted at non-existent meetings or record the attendance at the meeting of shareholders who did not attend.

In this sense, case law classifies the certifications of company meetings that were not even held and which, therefore, could not have adopted any agreement, as false commercial documents with potentially damaging effects on legal traffic by the mere fact of registering them in the Mercantile Register. This is because the security and trust in commercial transactions are harmed, and the function that documents are called upon to play in legal life is protected by the punishment of false documents, as they serve as a means of perpetuating the declarations of intent contained therein and their inherent veracity.

Both the false attribution of the holding of a general meeting, and the supposition of the intervention of shareholders who did not attend the meeting, do not constitute cases of ideological falsehood decriminalised for individuals, in accordance with Article 390.1.4º of the Criminal Code, in relation to Article 392.1 of the same legal text, but constitute, depending on each case:

  • Either, forgery under Article 390.1.2º of the Penal Code, consisting of simulating a document in whole or in part, in such a way as to mislead as to its authenticity.

  • Or, the falsehood of Article 390.1.3º of the Criminal Code, assuming in an act the intervention of persons who have not had it, as repeatedly held by the jurisprudence of our High Court.

Specifically, the false attribution of the intervention in a General Meeting of a shareholder who has not participated in the same does not constitute a decriminalised ideological falsehood but is in line with the typical conduct of article 390.1.3º of the Criminal Code.

To the above, we should add the consideration, where appropriate, of a continuing offence, which would entail the application of the penalty corresponding to the upper half of the offence, as established in Article 74 of the Criminal Code, bearing in mind that the penalty for the offence of falsification of a commercial document is punishable with imprisonment of six months to three years and a fine of six to twelve months.

As well as the possibility that the falsification of a commercial document may give rise to the application of two different offences (the offence of falsification of a commercial document under Article 392.1 Criminal Code and the corporate offence under Article 290 Criminal Code) and the need to resolve the situation concerning the concurrent offences.

Judith Torregrosa Martínez

Lawyer in the Legal Department at Devesa&Calvo Abogados.

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