As of September 1, 2024, Law No. 21,595 on Economic Crimes (LDE) came into force, which introduces important changes to Law No. 20,393 on criminal liability of legal entities. This new regulation establishes that legal entities, including private for-profit and non-profit companies, public companies created by law, state-owned companies and universities, political parties, and even religious organizations under public law, may be criminally liable for economic crimes committed by their members.

In this regard, in an article published by the national media El Mercurio, our partner Javier Diáz, explained that, “under the law in force until today, individuals could only be criminally liable if the crime was committed for their benefit. Now, the sanctions apply even if the company does not receive any benefit, unless it is the victim. It will not be liable for crimes only when it has a prevention model effectively implemented. Diaz points out that the law creates some new sanctions, such as that of a supervisor who can impose a prevention model on a convicted legal person, and makes others more severe. The sanctions can be the publication of an extract of the conviction, the confiscation of goods and profits; fines; the supervision of the legal person; the loss of tax benefits; the inability to contract with the State, and even the extinction of the legal person”.

On the other hand, the Economic Crimes Law establishes that as long as a bill does not coordinate the different penalties, sanctions and measures that may be applicable to a legal person for the crime of collusion, legal persons will not be criminally liable for this offense. This bill has not entered into the Congress, so there is no criminal liability of companies for collusion. The inclusion of collusion as an economic crime is a matter that was widely debated during the processing of the bill.

In this regard, our partner Francisco Bórquez, added that the National Economic Prosecutor’s Office (FNE) has pointed out that there is no advantage of including the crime of collusion within the criminal liability of legal entities, since the free competition law is more demanding than the Economic Crimes Law. For example, says Bórquez, it allows the use of compliance models as exemptions from liability. “The way the system currently works (with a procedure before the TDLC and before criminal courts) makes it possible to balance the technical complexity of qualifying collusion and criminal sanction. Including a different liability complicates the application of the current system” (El Mercurio).

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