El delito de alzamiento de bienes

alzamiento de bienes

Brief reference to fundamental points of the crime of alzamieto goods

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Definition of the crime of concealment of assets

The crime of concealment of assets is a socioeconomic offense consisting of any action by the debtor aimed at the removal or concealment of all or part of its assets, in order to make it difficult for creditors Hallen assets with which to collect your debt.

The person performing the concealment of assets intended to conduct salvage all or part of their own benefit or that of someone else, thereby impeding the execution that could keep creditors.

In addition it is a crime mere activity to be considered committed by the simple fact of acting as such.

Therefore, the requirements for the existence of a crime of concealment of assets are as follows:

  • monetary obligation of the debtor, it can be public or private. There is unanimous agreement in the jurisprudence of the birth of debt, since they indicate that it must be born before the crime.
  • Right credit to the creditor, which may be a natural person or a public or private legal entity
  • Performance by the debtor fraudulent actions available, concealment or destruction of property of its assets, by debtor we include also, the guarantor, the guarantor or vicariously liable.
  • The obligation remains in a situation of total or partial insolvency fictitious.
  • Intent to injure the creditor, preventing or frustrating to liquidate its debt. preventing or hindering their access to the general patrimonial guarantee of Art. 1911 the Civil Code states that any debtor responds with their property, present and future, Of the debt.

Regulation of concealment of assets

El delito de alzamiento de bienes, It typified in the article 257 y siguientes del Código Penal Recently modified 2015, in Chapter VII

Of punishable insolvencies”. This new reform has made the following changes in the crime:

– The type compounded for those cases in which the insolvency cause to thwart the collection of pecuniary obligations arising from the commission of a crime against the Treasury or the Social Security.

– The punishment of conduct designed to thwart a judicial or administrative enforcement.

The legally protected in this crime would protecting the right of creditors to implement and enforce your credit, and therefore prevent not disappoint, in case of default of the debtor, under the principle of universal responsibility conforme al artículo 1.911 Civil Code.

In this type of offense direct intent only it is possible, possible fraud not being possible. Is the author of malfeasance know it will cause damage, in this economic case. Therefore reckless behavior will not be punished.

The consummation of the crime of concealment of assets will occur with the disappearance or concealment of his fortune by the debtor. In this way the Supreme Court pronounced judgment in Case 27 April 2000 que establece lo siguiente:

"Enough intent to injure creditors by concealing that hinders the means for collection; no real and effective insolvency is required "

The basic type of concealment of assets is found in Article 257 the C.P, which states that:

“1. He shall be punished with imprisonment of one to four years and a fine of twelve to twenty four months:

1.º who takes up with their goods to the detriment of its creditors

2. The same penalty shall be punished who Carries out acts of disposition, shall contract obligations or hide their assets diminish by any means elements of their heritage on which implementation could be effective, in order to avoid payment of civil liability arising from a crime was committed or you should respond. "

Aggravated type of concealment of assets

Aggravated type of crime of concealment of assets, It noted in the same art. 257 the COP at its paragraph 3, which reads as follows:

"The provisions of this Article (257 CP) shall apply whatever the nature or origin of the obligation or debt whose satisfaction or attempt to circumvent payment, including economic rights of workers, and irrespective of whether the creditor is an individual or any legal entity, the public private.

Notwithstanding the foregoing, in the event that the debt or obligation that try to circumvent it by public law, the creditor is a public legal person, or in the case of pecuniary obligations arising from the commission of a crime against the Treasury or the Social Security, the penalty to be imposed shall be imprisonment of one to six years and a fine of twelve to twenty four months. "

Last, It is included in the C.P a special type of crime of concealment of assets when the real owner of the property continues to exercise powers compatible with the domain, but prevents formally listed as the thing itself.

It is typified in Article 258 CP, as follows:

1.-shall be punished with imprisonment of three months to one year or a fine of six to eighteen months who, in enforcement proceedings judicial or administrative, submit to the authority or official responsible for implementing a list of goods or incomplete or untruthful heritage, and thereby dilate, obstruct or impede the satisfaction of the creditor.

The list of assets or equity will be considered incomplete when the debtor executed use or enjoyment of property owned by third parties and does not provide sufficient justification for the law which protects such enjoyment and the conditions to which it is subject.

2.- The same penalty will be imposed if the debtor, required for this, stop facilitate the relationship of goods or assets in the preceding paragraph refers to.

3.- The offenses referred to in this article will not be prosecuted if the author, before the authority or official had discovered the mendacious or incompleteness of the declaration submitted, appear before them and submit a declaration of assets or equity truthful and complete.

Finally note that the limitation period for the basic rate would be 5 years since the penalty is 1 a 4 years imprisonment and aggravated types of 10 years old, both counting from the fraudulent acts were committed.

Forms of concealment of assets

The legal acts that can be committed concealment of assets is any act of patrimonial provision obstruct or impede the effectiveness of an embargo or executive process; here we set out a list of actions that can be considered concealment of assets:

  1. The purchases or donations from family or friends, It is a very common option in this offense, in which the debtor makes donations or purchases simulates with family, stripping himself of everything good that is in its heritage. In these cases, the relative or acquaintance acts as a necessary collaborator and whose ownership pass property to avoid foreclosure. Then, if receiving the goods was aware of the existence of the debt and the claim by the debtor, It can also be considered author of concealment of assets.
  1. Assumptions of fictitious divorces, where its realization is merely formal but conceals very different from normal divorce purpose and what the aim is to transfer the assets of the debtor to the other spouse through an economic pension and therefore staying the debtor without the ownership of the goods.
  2. Disposals Unexplained.
  3. Sales of almost all the debtor's assets.
  4. Sales in which payment of the price is not credited.
  5. The transferor shall continue in possession of the asset transferred.
  6. Apparent lack of economic capacity of purchaser of goods to meet the economic conditions laid.
  7. Appearance of a creditor, holder of a real right over the debtor's assets, which apparently has no relation to the economic activity of this.
  8. Peer-to-peer lending mortgage-backed securities, It is the most common form, since it reduces and virtually eliminates the value of the property being mortgage, which leads to useless for the creditor its embargo.
  9. Disinvestment of the debtor companies to form new, when the debtor is a legal person.
  10. There is also the destruction of property, or concealment in case they are furniture.
  11. Last, we must not forget, repudiation of inheritance detriment of creditors, Although the Supreme Court has stated that the rejection of the inheritance is not a case of concealment of assets, because it is a free act of the debtor that can not be limited by the right to collect from creditors. Although Article 1001 C.C allows the acceptance of inheritance from creditors.

Consequences of concealment of assets

Article 257 the Penal Code provides for sentences of one to three years imprisonment and a fine for anyone who moose with their goods to the detriment of its creditors or perform any act of disposal of assets or obligations that dilates generator, obstruct or impede the effectiveness of an embargo or enforcement proceedings or distraint, judicial, the administrative extrajudicial, initiated or predictable initiation.

In addition, the immediate consequence is the nullity of all acts of fraudulent transfer of assets, so that they become the debtor's assets to be seized.

In recent years, in order to compensate the affected by the damage that have been caused, Courts condemn the debtor not only the nullity of all acts of transmission, but also to establish compensation for the affected creditor, the amount of the debt plus interest.

Liability of legal persons in the concealment of assets

The real crime of rebellion can not be done only by individuals, but also legal, such a society. If a company incurs concealment of assets, the law provides different penalties depending on the case:

1) than 2 a 5 years if the crime committed by the individual is planning a prison sentence of more than five years.

2) Fined 1 a 3 years if the offense provides for a sentence of more than 2 years old

3) than 6 months to two years in other cases.

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