Corporate Criminal Liability In Argentina: A Short Term To Establish A Proper Compliance Program

Author:Mr Mario Eduardo Castro Sammartino
Profession:Castro Sammartino & Pierini
 
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Law Nº 27,401, establishing a specific regime on corporate criminal liability in Argentina, was published in the Official Gazette on 1 December 2017, and will become effective on 1 March 2018.

Criminal offenses

Under Articles Nº 1 and 2 of the Law Nº 27,401, private legal entities1 may be held accountable when either with their direct or indirect involvement, or on their behalf, interest or benefit, one of the following criminal offenses legislated by the Criminal Code of the Nation is committed:

Local and international bribery, and influence peddling (Articles Nº 258 and 258 bis of the Criminal Code of the Nation); Negotiations incompatible with public office (Article Nº 265 of the Criminal Code of the Nation); Illegal exactions committed by a public official in his / her benefit, or that of a third party (Article Nº 268 of the Criminal Code of the Nation); Illegal enrichment of public officials and employees (Articles Nº 268 (1) and (2) of the Criminal Code of the Nation); and Aggravated false balance sheets and reports (Article Nº 268 of the Criminal Code of the Nation). The liability will remain even though the crimes have been committed by an individual lacking capacity to represent the legal entity, as long as the legal entity has ratified the activity, even tacitly.

Failing to identify or prosecute the individual involved in the criminal offense does not impede to convict the legal entity, provided that the crime could not have been committed without the acquiescence of the legal entity's bodies (Ley Nº 27,401, Article Number 6). The individuals and companies liabilities are thus independent.

Penalties

Law Nº 27,401 provides for the following penalties: fines (ranging from two to five times the undue benefit that was obtained or that could have been obtained as a consequence of the crime); full or partial suspension of activities for up to ten years; suspension from participating in public bids of works and services - or in any State-related activity - for up to ten years; dissolution and liquidation of the legal entity if it has been established for the sole purpose of committing the crime, or such acts are the legal entity's principal activity; loss or suspension of government benefits; and publication of a conviction's summary (Article Nº 7). Additionally, the forfeiture of the assets that are the outcome of the crime also applies (Law 27,401, Article Nº 10).

Pursuant to Article Nº 9 of Law Nº 27,401, the legal entity shall...

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