Legal Alert/ Compliance Jurisprudence and Practical Advice

Wednesday January 13th, 2021

On December 2, 2020 after 6 years of investigation, the Act of Deliberation of the case processed before the 3rd Court of Oral Trial in Criminal Matters of Santiago was known, condemning the company Corpesca S.A. for its criminal responsibility in the crimes of bribery committed by its general manager, the former members of Congress Jaime Orpis and Marta Isasi.

The trial showed that the company designed and implemented a Crime Prevention Model, which was approved by its Board of Directors. However, the company was also convicted of not complying with Law No. 20,393, as it had a model with deficient implementation in practice.

1. 1. Failure to comply with management and supervisory duties. The General Manager of the company was not subject to any control or questioning or audit, which allowed him to execute the crime of bribery. No one audited his expenses or the way he managed the money owned by the company. The board of directors exercised no control and the Prevention Officer did not either.

2. Lack of autonomy of the Crime Prevention Officer. In this case, it was proven that the Head of Crime Prevention did not have sufficient faculties to exercise any type of supervision over the General Manager, since the Head of Crime Prevention, who in turn held the position of Assistant Manager of Administration, did not have autonomy to supervise him, since he did not have access to the Board of Directors or to the rest of the senior executives who depended on the General Manager in the chain of command of the company.

3. Lack of incorporation of the Prevention Model to the work contracts. It was accredited that the company did not comply with the duty imposed by its own Model and the legal obligation, to incorporate it in the annexes of labor contracts in a timely and efficient manner for the knowledge of its workers, including that of the senior executives. Here. The court especially adds that the executives are the most sensitive positions to incur in the illicit acts contemplated in Law 20.393.

4. Ignorance of the Prevention Model and lack of activities aimed at creating a true culture of prevention. . It was possible to prove that the Model was not, as a rule, properly known in the company. Likewise, despite recognizing facts that could imply illicit activities, it was established that after the resignation of the general manager to the company, not only was his management thanked in a letter, but he was paid a compensation of more than 300,000,000 pesos and was hired in another company owned by the controlling group. In the Court’s opinion, this denotes negligence, lack of corporate culture, lack of interest. Commitment and lack of compensation

For the court a paper model contributes to increase the guilt or reproach of the legal entity, if it has only sought to “give an appearance” of being complying with a Prevention Model.

Thus, this ruling reminds us of the importance of effectively fulfilling in practice the duties of management and supervision. In this regard, some practical advice can be found in this in the column “Duties of Direction and Supervision in the Law 20.393 on Criminal Responsibility of Legal Persons”, written by our Director Rebeca Zamora, the information in the link of the news.

For more information, please contact Carlos Frías cfrias@hdycia.cl o Rebeca Zamora rzamora@hdycia.cl.

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