outline Article 300 CP false balance.
On the basis of several articles, including: The crime of false balance • Baez, Julio C. LAW • 2002-B, 401 .- Baez, Julio C. Title: The crime of false balance .- Author: Baez, Julio C. Published in: Law 2002-B, 401 .- Court of Appeals in Criminal and Correctional room I (CNCrimyCorrec) (Salai) ~ 2000/06/06 ~ Clement, Gaston and others and also the crime of false balance corporate level Romero Villanueva, Horacio J. Source: RDCO 2002-111. CRIMES AGAINST THE PUBLIC FAITH - 06) Fraud trade and industry - d) Balance and Reports false
1. Text of article 300. ARTICLE 300. - Shall be punished with imprisonment from six months to two years: 3 º. The founder, director, trustee, liquidator or trustee of a corporation or cooperative or collective person who knowingly publishes, certificare or authorizes an inventory, a balance sheet, profit and loss account or the relevant reports, records or reports , false or incomplete report such to the assembly or meeting of members, falsely or reluctance, on events important to assess the economic situation of the company, anyone who has been pursued in order to verify .-
2. INTRODUCTION: This is a crime punishable fraud to trade and industry. This behavior is attributed to the typology of the "economic crime", which is an expression that refers to the so-called "white collar crime", whose meaning is limited "... to harmful violations committed by economic considerations people of high socio-economic development of their profession "(2).
3. But the importance of the issue is not limited to stating the criminal type, but, as warned for over thirty years died recently prof. Bolado Lopez (3), this event is connected to a criminal plurality of criminal actions (4) that inevitably lead in the "hollowing out of the company."
4. Moreover, the justification of our study is located because there are few convictions. From a survey of its importance in the crime statistics (5) of our country, for in 1996, a total of 20,370 convictions, 4 statements were issued, in 1998, a total of 15,714, there register any failure of convictions for this crime, and in 2000, a total of 18,377 sentences, not recorded a single conviction in relation to a world population of 32,615,498. Over the same period if we compare, for example, the crime of falsifying documents, we see that in the year 1996, issued 39 convictions in 1998 were delivered 18 convictions and, finally, in 2000 they dropped to 15.
5. These reliable data to be of convictions, beyond the criticism of the "dark figure" of crime, we can say that there is a great contradiction in the discourse of the criminal justice system, and that despite being based on liberal principles, concrete action determines its selective criminalization, in contrast, the formation of large sections of immunity. Among others, the causes contributing to give impunity to certain economic sectors that engage in this crime are: lack of awareness of the importance of the legal for its quality of diffuse, the economic harm to the individual victims indeterminate and lack of decision by lawmakers to establish penalties chords as harmful behavior to the community, and finally, the technical nature of the documents, leaving out the criminal law and granted a punitive basis for administrative or civil law.
6. In order to address each of the hypotheses that the criminal has, it must enter into the legally protected right to establish the concept of balance, because it is the type of regulatory element, the special qualities of the authors, the actions punishable and, finally, subjective structure of the type.
7. The legally protected: To enter the topic, it should be noted that the need to link the criminal protection to the notion of legal property serves to be informed when the content of the unjust in the field of typical descriptions and in this regard, the Court itself, in the leading case "Pulses SA" (6), correctly marked pattern of guidance on this matter by saying that the correlation between punishment and legal asset is that, based on the Prohibition of analogy allows the prohibition found that, under the guise of interpretation, the statutory rates to expand protection legal property other than that the legislature intended to protect. Conceiving the problem this way, Hassan said that legally can only come to be, "beyond any reasoning rules, when there is a clear social need that frequently endangers or is injured and whose lesion produces real feelings threat (7). The doctrine, the majority, has held that criminal protection of the public trust on these documents is extended to public law with the third to the availability of a true and complete information about the content of these documentos.En this sense, to Hendler (8 ) seeks to protect the confidence of others; for Navarro is confident about the honesty that should govern business and trade relations; Spolansky (9) means that the criminal protection of the public trust only covers in the figure, trade relations, and finally, Nunez (10) states that criminal guard covers the overall confidence in the correct development of commercial or industrial operations. In comparative law, Bacigalupo (11) sees as the object of protection of the crime of false balance sheets, accounts and reports-art. 290 of CPEN. English (1995) - external transparency of social administration (12). For us the legally protected, regardless of the unfortunate inclusion as trade fraud and industry, passed by the certainty and reliability to business relationships (loans, debts, etc.) reporting these accounting documents contained in the offense, as there are legal ethical principles that justify its importance in the light of the particular information granted. Whenever such information is precisely that makes it a valuable tool for business activity, made the legally "public faith belief" (13), which lies within the so-called socio-economic crimes. However, this does not preclude that may be involved, in some cases, individual economic interests, thus arises the additional problem of distinguishing between crimes those relating to economic and socio-economic order, for it must make clear that the proposed legal right is aimed at safeguarding collective interests, closely related to the economy, although they may go to turn individual interests. The need generated by the trust in the accuracy, objectivity and accuracy of the information that provides a balance in highly computerized societies implies the ability to attract investors anywhere in the world, thanks to technological advances, but also thanks to the large influx in the field of crime that has the accounting information, while the new modus operandi reveals situations that must be constantly alert for the judicial.
8. CONSTITUENT ELEMENTS OF THE CRIMINAL TYPE. Before delving into our analysis of the criminal offense, we must ask ourselves first: What are the salient features of the figures? It should firstly be noted that this is an intentional crime (14), in the pluriofensivo, for the conduct attacks diverse interests (because it attacks both the right to an accurate accounting information to which shareholders are entitled to a society such as interest of these in a corporation, distorted, or potential investors) is usually a means to commit other crimes (usually con-Art. 172 - or the different modalities defraudatorias-Art. 173 -), and in these cases is displaced by the "apparent competition" (15), is a formal crime (16) as the law requires that the agent will be directed to producing a result that offends and the protected right grief, and is merely a potential danger to the good stuff of which to be deprived in this action, and is therefore abstract danger, because according to that expressed only the ability sufficient to produce a result, creates the conditions for it but is consumed but there is no prejudice.
9. The actus reus. To install the crime of publishing a false or incomplete-balance provided for in art. 300, inc. 3, within the plane CPEN .- objective should be the following: a) implementation of the action of publish, license or certify, b) that fall on inventory, balance sheet, profit and loss account or the relevant reports, records or reports c) that are false or incomplete, and in the subjective aspect of type, require that this action is performed on a typical fraud. Also from the author, should be one of the subjects listed in the offense.
a. Concept of balance: The object on which rests the crime of false or incomplete stock-established in Article 300, Inc. 3, CPEN .- is the instrument which lists in detail all the components of assets and liabilities reflect the assets of a society, reason why a well-tailored balance should be a reflection of accuracy, reliability and accuracy of accounting data that allow for an objective analysis of his assets. By nature of accounting document, expressed as a synthetic economic and financial status of a company at any given time. According to Berrier (17), the balance can be defined as a document that reflects the valuation of assets and liabilities, calculated on a given instant, the object is the representation and measurement of the assets of a person, usually legal.
Regarding the laws of Argentina (Commercial Code, Act Companies and Bankruptcy Law), traders are required to take two books: the inventories and balances and the journal (Article 44, Commercial Code.), And notwithstanding this, the trader must keep books and accounting documents registered corresponding to the proper integration of an accounting system and to require the extent and nature of their activities, so that the accounts and documents clearly prove the acts of its management and its financial position (18). When Article 43 of the Commercial Code. imposes an obligation "to keep track and because of their operations and have an organized commercial accounting" means a burden inherent in the quality of trader, however, with regard to joint stock companies, one can infer the existence of sanctions under the provisions of art. 302 of the Companies Act 19550. The balance is the result, the completion point of the accounting, and consists of a table into two parts representing the active and passive situation of the company. In fact Farina (19), collecting the definition of Gregory, said that is the accounting that summarizes, in a given time, the balances of different accounts of the company. Then, the difference between liabilities and assets found by the profit and loss account lets you know if the company is receiving or deficit. From a standpoint of accounting, the balance also allows appreciate the company's net position, ie the extent to which the asset, less any debits (net worth) corresponds to the capital contributed by the employer or the shareholders and the reserves above. From a legal standpoint, we say it is a private instrument whose implementation is a legal act subject to forms and objectives designed to establish legal relationships between people, which the State imposes requirements (default), mandatory for viability and a specific purpose (20). The annual review, to be conducted at the end of each year of the current operating company, also involves the vision the future and presents a budget issue (21), and is viewed by the manner in which the asset is valued and how they were formed depreciation, provisions and reserves to cover certain risks in terms of economic policy Company (22). Now it may happen that after the close of the accounting is no distortion in the figures mentioned but prior to certification, authorization, approval or publicity, yet the accounting doctrine and specific legislation (23) claim that these data must be included in the financial statements with notes to them to warn and inform the reader fully. Failure relevant information that leads to the consummation of the prohibited conduct in the offense (24). Finally, it should be interpreted with caution because, above all, is an assessment that expresses an objective reality which sits many times the reality of the company, but few are blurring function for spurious or illegitimate benefits by misrepresenting their data or results.
b) The role of balance in society and derechoa information. The preparation and timely submission of financial statements, and not just the balance annually to members, is not only an obligation of the directors, but an inalienable right of them, as is apparent of Article 69 of the LS, and limitations that may provide the statute or regulation or have a majority in the assembly, can only serve the purpose of making it compatible with the corporate order.
According to Halperin (25), the right to information has acquired real importance it deserves in the structure and functioning of societies, although it appears more relevant in corporations, and there from the constitution-Art. The LS-179, until the liquidation and partition - Arts. 104, 107 and 110 of the LS-and must be comprehensive. Expresses the same author that publicity predisposed by law for certain principles are complementary and the control of information, but not replaced individually. It implies that information must be truthful, comprehensive and cover the progress of society, and the exercise of the right to report fulfills two functions: prevention and control of corporate management. This information is required on three key target: a) owners, officers and staff of ideal body, b) third parties and c) the State itself. All these stakeholders, for various reasons, may need information about the company, especially about their heritage and the evolution of it. This collection of economic data, financial, tax, etc., Are collected and provided by the presentation of financial statements (26), generally allow evaluate performance, projections and expectations that underpin the size of the business. It is precisely under this "public trust" referred to by the "public confidence" in general on the honesty that should govern business and trade relations, which transforms the balance of transparency of the development pillar of the activity social, which in turn reports on the evolving constantly mutable situations, affecting the formation of equity and internal and external relations arising from the operation and which should be designed to support indeterminate legal relations. The main factors to take into account to evaluate and measure the falsity and incompleteness of the states accounting, in our case, is the law 19 550 (on documentation and accounting), in close harmony and subordination with budgets, basic characteristics and criteria that inform modern accounting theory, with particular regard to the objective of financial statements.
c) The magnitude of the events to assess the economic situation of the company. As we have seen, the balance, important in any business, is of vital significance in the corporation to the partners and third, for his triple role to know the status of company assets, ensuring the integrity of heritage and provide information on corporate business and its consequences, the distribution distribution of profits or losses.
However, Article 300, Inc. 3 of CPEN. set that misrepresentation is appropriate when the rate falls on "relevant facts to assess the economic situation of the company." The question that arises is: When an event is of these features? Is it an objective condition or type in the penalty goal? How important are all the items set out in Arts. 63 to 66 of the Societies Act to assess the economic situation of the company as required by the criminal?
Sponlasky (27) adheres to the idea that under the wording of the figure, there are three distinct scenarios, namely: 1) publication, 2 º) authorization of a balance or account of profits or losses or the relevant reports, false or incomplete, and 3) inform the assembly or meeting of members with false or reluctance on important to assess the economic situation of the company . From this categorization can be inferred that only enter as components of the objective facts type of "economic significance" in the latter part of that inc. 3 of Figure treated. In contrast to Hendler (28) are two typical differential alternative hypothesis: one qualified individuals who knowingly publishes, certificaren or authorizes an inventory balance, a profit and loss account or the relevant reports, records or reports, false or incomplete, and on the other, who report to the assembly, or partners, falsely or reluctance, if it is true that this is a much more development broad and comprehensive, even the facts concerning important to assess the economic situation of the company. In one case enough to have false or that the case of an incomplete state and the other requires that the misrepresentation or withholding relates to certain facts of economic magnitude, but both Spolansky Hendler and assimilate as an objective element of the type. For its part, Rocha Degreef (29) interpreted that this is an objective condition of punishment, since it is a condition the provision to the extent that is within the executive process of the crime, depending on the budget to fulfill a condition required by law, must be then in the report required by the standard, provided that: 1) relates to economic events of the company, and 2) that they are important enough institution to assess the economic situation of the company. For its part, Bacigalupo understands that to measure the importance of falsity must derive a criterion by which they estimated. This approach can only arise from the purpose for which points the offense. This type of crime tends to criminalize what is usually a made-up to the scam, ie making an instrument that can be used as a ruse or causing a partner or a third party determine the error that a provision harmful assets, based on the false appraisal. This approach, concludes the author mentioned, can not establish a priori, thus the typical misrepresentation within the meaning of Section 300, Inc. 3, it depends on the level reached by the falsity in relation to their suitability to be misleading. In this scenario doctrine, it should be noted that the jurisprudence (30) has been applied, economic magnitude of the data, both as the first and the second hypothesis of the criminal, making this range introduces a "mere omission" that should be assessed for each individual case, taking into account whether the amount of the operative not included in the balance is not important or decisive in assessing the economic situation of the company, compared to the commercial activity of the same in the year. We can only object to this generalization, because although, as noted by De Llano (31) - a tiny gap between real data and representative data on the balance sheet would be difficult to make emerge a capacity of deception in terms of the figure, it is no less true that we can not pass unnoticed three essential characteristics in relation to the first part of the crime: that is to suppress conduct that undermines public trust by the same dangers of falsehood, which is to punish an act preparatory to eventually reach other crimes, and finally, the law does not explicitly introduce a quantitative limit on the falsity of an inventory, a balance, an account of profits and losses, reports, records or memory. Consequently, the judicial assessment can not extend the operation of it beyond what the guy agrees.
d) The special qualities of the author who takes the picture. It is evident from the statement itself that makes the target rate, which can only be perpetrators criminally responsible persons expressly named in the precept, namely that it is "its own special crimes" that can only be performed by a qualified author (32); According Stratenwerth (33), these special requirements of authorship are the result of the existence of a "special duty" lesion, which gives rise to a relevant criminal wrongfulness (34). This implies the need to determine the quality of these subjects, since, according Creus (35), the figure refers only to those who exercise consistently or permanent administrative or managerial functions, having to prove the functional relationship between the agent and Typical actions, including this view in particular to the trustees of corporations, as it appears in the text of the standard. But this does not prevent to apply the principles of criminal involvement to others who contribute in relation to the result, as the general duties imposed by corporate law to hold a decisive role when "close" the statutory rate of false balance. At the same time, Bello Knoll and D'Albora (h) have stated that approval of false or incomplete statements by the shareholders or members, conscious that they have these characteristics, making them partakers side, since even without his intervention, the action is accomplished by performing the behaviors described in the law by special active subjects (36). In view of the foregoing, it is analyze each of the possible perpetrators:
1) The founder. According to Degreef Rocha (37), are founders who took the initiative to establish or create the society and provide as partners in establishing contract (Arts. 163 to 185 of the Companies Act, referring to the constitution and formation corporation). For its part, case law (38) to said that "we believe that the founders operate as agents of 'body in training', it takes the form of a provisional society, that the status of the founders is somewhat comparable to representatives of the people needed to be born or that we are facing a phenomenon sui generis the rule of Article 324 of the Code. trade must be strictly enforced in their responsibility, since it displaces enshrining art solutions. 1930, 1936, 1947, 2304 and 2305 of VCCI.. "In short, are those who take the initiative to the direct creation of the company and take direct intervention in the events leading to its constitution, acting at your own risk and assuming responsibility for the management, so that can be assigned special benefits on profits and on capital (39). remember some concepts that help to clarify the picture. The Companies Act 19550 speaks of the founders and those (subjects) who sign the contract establishing a joint stock company and promoters and those who signed the program of that company, and also speaks of incorporation by a public and public subscription.
So we have to "founders" are the partners who went to form the company, and their status can be booked for any right or privilege (shares with more voting rights, for example.), If it does not, standing as equal basis with other shareholders who join later. In short, when the law speaks of corporate promoters and founders, the Penal Code refers only to the latter (whose previous distinction has been reported). The meaning and significance of the concepts contained in the Code must also be found in the aforementioned law 19550.
2) The director. The office of director is a personal or delegated. Directors may not vote by mail but may do so on behalf of other directors, if there is a quorum at the meeting in question (Article 266, Companies Act). The representation of the company is vested by law the chairman. Nevertheless, the statute may authorize the use of one or more directors to apply as prescribed by art. 58 of the Law 19550. For his part, Article 270 provides for the possibility by the board to appoint general or special managers, in whom can be delegated executive or administrative functions. General or special management, which can be composed of directors of the company, not part of the board of directors of the corporation, Zunino being defined as "a high-factor hierarchical level, and therefore, an employee of the society "(40). It should be mentioned that since the reform introduced in the second part of Article 274 of the Companies Act, it expressly stated that "the attribution of liability shall be the basis of individual performance as may have been personally assigned tasks according to provisions in the statute, regulation or assembly-based decision. " The latter, the Like the figure of special and general manager or the virtual creation of the Executive Committee, is crucial to determining punitive responsibility of each of those responsible for the administration of the entity, because although there are generic duties imposed by the Corporations Act to all officers and members, many of these duties are specified and increased taking into account the special position that the subject is against the public interest. Everyone knows that most companies are governed by dominant sectors, with little or no minority participation. It is for this reason it is absolutely incompatible with the principle of criminal culpability extending punitive liability to those sectors that were absent and did not contribute to the formation of decision unfaithful. This, without prejudice to point out that the civil matter is governed by other standards of behavior, which of course can extend liability based on objective factors allocation. On those grounds, the actual determination of the functions of capital personal importance to investigate the authorship of the administrator.
3) The administrator. Specifically, the figure of the corporate administrator, we see that the law 19550 provides, in Section VIII, Chapter I, more precisely in the arts. 58, 59 and 60 - under generic regulatory administration and representation within commercial companies, who, dogmatically, applies to each and every one of the types of companies under the rule. Article 58 begins by expressing "the administrator or representative in accordance with the contract or by operation of law has the representation of society requires it for all acts which are not manifestly contrary to the social order ..." . However, according to Navarro (41), administration covers all the relationships can be established with foreign equity under the trust given to the administrator. Different is the situation described within corporations, Where the administration of the entity is assumed by the directory itself. However, this is not the same representation in these types of companies, which lies in the hands of the president of that body. The latter is not started the possibility allowed by the rule of assigning more than one director to representing the legal person. In that case, the management entity will be headed by a board composed of one or more directors appointed by the shareholders or the supervisory board, if necessary.
4) The liquidator. Is the supplier to the closing of management functions running in the normal commercial business of the corporation are entrusted to their managers. Its activity is straightened to the realization of lending and of liabilities forming the residual subject to division and return. In fact, the figure of the settlement, referred to in art. 102 of Law 19550, has the necessary representation of society as a legal person in liquidation, and is vested with the authority to conduct all acts necessary for the realization of assets and settlement of the liability (art. 105 of the law), this task is not only a power but a real obligation.
5) The liquidator. The person or group of persons to whom the law imposes a specific duty to control or control of the company (Articles 284 et seq. of the LSC). Under the Companies Act, the trustee is not a passive organ of control, but an institution designed to your rights and obligations that forced him to take active participation in several cases (Articles 294, incs. 1, 4 and 9, 296 and 297). Accordingly, the trustee does not assume the representation of society, but the actual liability to certain legal obligations and the role of corporate managers themselves. However, as we realize Baez (42), corresponds to differentiate between the trustee and those companies involved in reorganizations or failures, and so only subject active conduct the corporate trustee, and not in any possible framework of action to the bankruptcy trustee or falencial.
e) The conduct punishable. From a teleological point of view, examining the text of the figure reveals a particular interest in achieving maximum transparency in corporate information, as such information, expressed in certain documents to issue the ideal body, must be complete and true (43), reflecting the true picture of corporate activities in protection of the entity, partners or third parties.
In other words, the rule is to guarantee the right to correct information of members, creditors and third parties to be reflected in clear and accurate documents, right corresponds to a duty on employers to keep proper accounts and faithful, as the commercial law setting specific rules governing how how to do accounting, and compliance enables know for certain the status of operations, business conditions and performance in the interests of members, creditors and the State. The mere reading of art. 303, Inc. 3, identifies four punishable acts are connected with descriptive references of the crime, namely:
1) Publish. Is to inform stakeholders or recipients in the manner set forth by law or by bylaws, the accounting tool. The duty to publish the balance - false depending on the offense - leads its scope to an undetermined number of people, this disclosure should occur before the assembly, or submitted to any authority or institution to whom the report to determine any damage, but rescues as Soler (44), a publication abusive, individually determined by someone else, if belonging to the directory, not the offense.
2) Certify. Is to check or provide a demonstration of the truth of what it communicates the knowledge of falsity (45). To Creus (46), who have the power to confirm or attest to the veracity of what is communicated, you do know the falsity of content. Under these conditions, it seems that the people reached by the figure are neither the directors nor the trustees, as they or their professional status certify the contents of the minutes. In any case, approve the heading and can say without any hesitation, that the signature matches the expression certified. Necessarily understand that it can participate in the commission of the conduct who certifies the balance in the capital area, as the law demands it 20488, Section 13, the certified public accountant certificates issued by National University and enrolled in the School for Economic Sciences ( 47). This statement even is corroborated by Article 5 of the Code of Professional Ethics, which demands that "all opinions, certification, report or opinion, etc.., must be expressed in a clear, precise, objective and complete according to standards established by the advice. The responsibilities for documentation professionals sign is personal and nondelegable, but requires action by employees. " But also, as rescues Bacigalupo (48), exclusion of the counters in the crime of false balance is totally unjustified. First, because the false balance is almost inevitable the help of an accountant for its implementation and this participation is not, in general, naive, and certainly that such exclusion is not a guarantee of immunity for the counter to participate in the appropriate facts to the crimes of Art 300, Inc. 3, or 301 of CPEN. Their behavior may fall under the criminal threat as a result of its own rules of participation-Arts. 45 and 46 of CPEN .- as accomplices or instigators. However, in a posture stands found Navarro (49), for whom the sole author of the false or incomplete certification is the trustee, as it weighs on the audit work of managers, so that the state's approval accounting would certify its accuracy. Finally, from the point of criminal policy, it is necessary legislative reform to the criminal that qualify as authors, they certainly could differentiate between his situation and that of directors, etc.., with respect to the intensity of fiduciary duty because society, but this increased intensity, product social relationship is compensated by the position of trust that the accounting profession should inspire.
3) Authorize. Is to pass the act in the manner prescribed by law or statute. Legally, amounts to consent, when that function is actually exercised. According to case law, "who can authorize the financial statements are the board members, directors, whose approval is necessary prior to submission the social meeting "(50).
4) Report. It consists of detailed evidence to inform and precise for an easy understanding of the shareholders or members, convened in a meeting or social gathering for the purpose of false or reluctantly prepared to relate to events of importance to determine the status of the company (51). According to Baez (52), information can be oral or written, if the first one, the crime is completed when you pour the falsehood or conceals the truth. If it is written, the complete implementation of the crime that takes place with the delivery of it to stakeholders.
2. The subjective type. Firstly, it should guard against the accumulation of regulatory elements presenting the target rate requires a careful verification of them. In relation to these elements, the author must have had only "parallel knowledge in the field of lego." Secondly, it is a crime of intent (53) and is configured through the direct intent, because as it rescues the case (54), "there is no improvisation as in the generality of the criminal, but there a premeditated action, a collusion of specialists studied carefully prepare the criminal act. " For its part, Zaffaroni (55) found two different kinds of subjective elements, those carriers are characterized by an intention that goes beyond the purpose of obtaining a typical result, and those identified by a particular provision of the active subject. The former are called subjective elements of excess internal tendency or transcendent, while the latter identifies them as a peculiar internal trend. Moreover, as the offense requires a particular ingredient in the cognitive area (with reference to the assets subject )..." who knowingly publishes, or authorizes certificare ...", so the principal and dominant element of subjective type is the "intent" determined by the knowledge that the author is that it is conducting a fact, and knowing what makes the circumstances surrounding it (knowledge and willingness to perform the type objective) (56). In the false balance we have, then, an intentional offense, peculiar inner tendency, whose intentional component "knowingly" demand the certain knowledge that it distorts the balance sheet data (57), thus ruling out the possibility of its consummation any act with intent (58). To Hendler (59), can not be attributed to the mere management control deficiencies or omissions of the organization, which may be the cause of distorting accounting information, not subjective element configurations, and therefore no provision for a corresponding mode fault can not be criminally accountable. The rule has another subjective reference when he says that "whoever would have been the end sought to be verified ", which allows us to infer that it disregards any pecuniary benefit to the author or a third party, it being sufficient breach of public trust (60), because, as he says Deprez (61) - the guilty intent is not in the phone that led to the perpetrator, but something much more alien to his inner psychology, in the consciousness of the accounting irregularities. So irrelevant is the motive of the author, it can happen that make the accounting inaccuracies with the sole purpose of mitigating the problems of a difficult financial situation Dear passengers, to maintain confidence in the future of the company by shareholders or to attract potential investors to reverse it.
3 .- CONCLUSIONS. The abstention of the state against the urgent need to prosecute criminal conduct economic impact in the field of trade relations creates the need for more adequate treatment of crime in the company (62). Within this, the figure of false balance is not at a lot lower, as the intensity, economic concentration and globalization of the investment demand for criminal protection of the information set forth in these documents. In the present paper has attempted to address what we believe is a "pending" in our criminal law, particularly related to the integrated study of same with commercial law itself, and within it, with corporate law, "for the purpose of addressing the problem of criminal conflict within the company (63). The need for vigorous enforcement of our criminal justice system is justified by the many interests that depend on an objective and truthful information on the management of the company to the market for public offerings of securities, protection of investors, which summarized in a categorical imperative to the public confidence in the corporate sphere have balances. Finally, as a corollary of the above, we believe it is necessary to add ferenda criminal figure disqualification (64), which can distract the authors of the business, because we can not forget the old Latin adage "ut res is turpissima quoeque, sic est maxime vindicated" (the more detestable is an action, the more has to be punished).
(1) Text 21338 according to law, ratified by Law 23077.
(2) LOW FERNÁNDEZ, Miguel, "Economic crime. A criminological and criminal policy approach", cit. by Amadeo, Sergio, "economic crime: the white-collar offender, JA, 10/7/1996.
(3) LOPEZ Bolado, Jorge D., "penal framework of the" hollowing out of business, "RDCO, year 4, no. 19 to 24, ps. 77 ff.
(4) Among other conduct set forth, Bolado Lopez highlights the-art conspiracy. 210 of CPEN .-; the scam and other frauds-arts. 172, 173 and 176 of CPEN .-; the material misrepresentation and public and private instruments, arts. 292 et seq .-, and finally, trade frauds and industry, caught in potentially criminal conduct of the arts. 300 and 301 of CPEN.
(5) These figures relate to the criminal statistics for 1996, 1998 and 2000, prepared by the National Directorate of the National Registry of Recidivism, the Ministry of Justice and Human Rights Office.
(6) SCJ, L.119.XXII, in re "Pulses SA and other s / smuggling" of 19/10/1989, repeated doctrine in the case "ESA and Tourism Exchange House, B., FR" from 23/2/1995.
(7) Hassemer, Winfried - Muñoz Conde, Francisco, Introduction to Criminology and Criminal Law, Tirant lo Blanch, Valencia, 1989, p. 70.
(8) Hendler, Edmundo, "The crime of balance and the public trust," ED, 116-790.
(9) Spolansky, Norberto, "Balance false criminal proceedings and legally", LL, 139-224.
(10) NUNEZ, Ricardo, Treaty of Argentine criminal law. Special Part, T. VII, Lerner, Córdoba, 1974, p. 224.
(11) Bacigalupo, Enrique, economic criminal law course, Marcial Pons, Madrid, 1998, p. 129.
(12) Unlike the same figure in the English Penal Code, approved by Law 10/1995 of 23 November, in his art. 290 provides: "... managers, in fact or in law, a company incorporated or training, which falsify the financial statements or other documents must reflect the economic status or the entity, a state for cause economic harm to it, any of its partners, or third parties will be punished with imprisonment of one to three years and a fine of six to twelve months.
"If you can be reached to cause economic damage penalties will be imposed in the upper half.
(13) Do not forget that "it is general confidence (Leading legal right) relies on the assumption that certain signs and instruments as a legal transaction with certain forms and social objectives are suitable for the development of civil life, to the extent that the State has recognized and regulated " (Baigún, David - Tozzini, Carlos, The forgery case law, 2 nd ed., Depalma, Buenos Aires, 1992, p. 14).
(14) is a crime "fraudulent" because it requires knowledge of falsity ( in your data), this requirement introduced by the reform law 17567/1968 and then the 21338, ratified by Law 23077.
(15) It should be noted that when there is a great contest between the emission false balance and the trick of apparently well able to give credit to provide loans, not being mutually exclusive figures, the prohibited conduct becomes a single, indivisible, and that falsifying a document and use it with a criminal intent (fraud ) implies the existence of two criminal acts, because there are two changes that occur in the outside world, both with the same criminal significance. In short, there is unity of crime per unit of fact and resolution (which is what is referred to in art. 54, CPEN.), As the "use" of false balance is the way that integrates the scam misleading.
Likewise, the law states that "when false statements appear as means used to commit fraud, is imposed, in principle, the trial set of the two. The conclusion is logical if you notice that the scam requires the ruse or deception, while the false balance repressed "anyone would have been the end sought to verify" (CAM.ES Nat Pen. Econ., Room 3 meetings, from 21 / 9 / 1981, because "Barberis, Juan A.", LL, 1982-A-168).
(16) SOLER, Sebastian, Argentine criminal law, TV, current. by Manuel A. Bayala Basombrío, TEA, Buenos Aires, 1992, p. 485.
(17) BERRIEN, Erlinda E., "The false balance" in http://www.diariojudicial.com.ar.
(18) Not surprisingly the art. 51 of the Commercial Code. requires "All balance must express a true and consistent with its objective, financial situation to date. Except for laws or regulations that provide otherwise, your game will be formed on the basis of open accounts and according to uniform criteria valuation. "
(19) FARINA, Treaty of business partnerships, T. I, Zeus Editor, ps. 535/563.
(20) BERRIEN, Erlinda E., "The balance ...", cit.
(21) The Commercial Companies Law No. 19550, in his art. 63, explicitly demand that the balance sheet should be provided with accurate information items specified by the standard.
(22) Do not forget that art. 234, Law 19550 in relation to the corporation demands, such as proper and exclusive competence of the regular meeting, consider and resolve the following issues: 1) Balance sheet, income statement, profit sharing, memory and report of the liquidator and any other measure for management of the society which must be settled according to law and the statute or to submit to its decision the board, the supervisory board or the trustees, 2 º) Designation and removal of directors and trustees and members of the supervisory board and setting their remuneration, 3 º) Liability of directors and trustees and members of the supervisory board, 4 º) under capital increases Art. 188. To consider the items 1 and 2 ° shall be convened within four (4) months of the year end.
(23) Article 65, inc. f) of Act 19550.
(24) Cam. Nat Pen. Econ., Room A, of 20/10/1994, because "Ponce, Eduardo, and others, LL, 1996-A-98.
(25) HALPERIN, Isaac, "On balance, the right partner to information and judicial intervention," notes a failure RDCO, year 8, no. 43/48, 1975, ps. 413 et seq.
(26) The requirement of the Corporations Law is that states: "In the balance sheet should be provided the following information is required ..." (Art. 63); "The statement of income or profit and loss accounts shall explain ... (Art. 64) "," in the event that the relevant information is not contained in the financial statements of the arts. 63 and 64 must be accompanied by notes and pictures ... "(art. 65);" administrators should inform the memory ... the report should be "(art. 66).
(27) Spolansky, Norberto," Balance ...", false LL, 139-224.
(28) Hendler, Edmundo "Crime ...", ED 116-790.
(29) ROCHA Degreef, Hugo, "The crime of false reports and balance", LL, 145-843.
(30) Cam. Nat Pen. Econ., Room B, reg. 320/1994 .
(31) DE LLANO, Hernán G., "The crime of balance and reports false and financial significance of the facts, "LL, the 16/11/2000.
(32) ROCHA Degreef, Hugo," The crime ...", cit., Hendler, Edmund S., The criminal liability of managers of financial institutions, Depalma, Buenos Aires, 1976, in particular Chapter V.
(33) STRATENWER TH, Günter, criminal law. Party general (offense), T. I, trans. Gladys N. Romero, Fabián J . di Placido Editor, Buenos Aires, 1999, p. 76.
(34) If, in addition, consider the formula of "good businessman" described in the art. 59, 19550 law includes a "fraud, gross negligence and abuse of authority ", this allows us to arrive at a systematic interpretation which allows to conclude that the standard of good business man is perfectly applicable in the integration of the offense for the purposes of determining the punishable behavior.
(35) CREUS, Carlos, criminal law. Special Part, T. II, Astrea, Buenos Aires, 1983, p. 471.
(36) Bell Knoll, Susy I. - D'Albor (h), Francisco, "False Balance" Paper presented to the VII Argentine Congress on Corporate and III Latin American Congress of corporate law and business, UADE, Buenos Aires, September 1998.
(37) ROCHA Degreef, Hugo, "The crime ...", cit., P. 844.
(38) SCBA, of 2/11/1971, ED, 44-428.
(39) JOY, Hector, Corporations, In Forum, 1963, cit. by Roitman, E., The fraud industry and trade, p. 123.
(40) Zunino, John, commercial companies scheme, p. 247. For Farina, "if the position of general manager or managing director is provided in the statute is ultimately a statutory manager, but if the designation of this official is not provided for in the statutes, and his appointment is made by resolution of the board who determine their responsibilities, the manager so appointed shall not have the social status of an organ of administration, but the legal concept of a general agent or factor "(Farina, Juan M., Compendium of commercial companies, Zeus Editora, Rosario, 1989, p. 418).
(41) NAVARRO, Guillermo, Broken and other debtors punishable Legal Thought Editora, Buenos Aires, 1984, ps. 103/104.
(42) Julio Baez maintains this distinction, on the understanding that in these latter cases, the trustee is part of the process. Since the bankruptcy law profile can be defined as the diagnosis of the crisis failed. Is a partner of the judge, because it can estimate the likelihood of compliance by the bankrupt or insolvent preventively and to envision the picture of an exit as painless as possible (Baez, Julio, "False Balance", JA, 2001-I-853) .
(43) Under-quoting Fargosi-Soler, the law imposes a positive duty of truthfulness (FARGOSI, Horacio P., "The legality of a national securities commission. Liability for false statements," notes a failure, RDCO, year 4, no. 19/24, Depalma, Buenos Aires, ps. 797 et seq.
(44) SOLER, Sebastian, criminal law ..., cit., p. 484.
(45) According to Degreef Rocha, action to certify the property is to issue a document, in summary, the fact involving a certificate and attestation content of truth or knowledge (ROCHA Degreef, Hugo, "The crime ...", cit., p. 844).
(46) CREUS, Carlos, criminal law ... cit., p. 471.
(47) In the same sense is expressed Berrier, expressing is to certify anything for certain, secure, affirm, is the mechanism by which the "CPA", for example, states that the data contained in the documents are accurate. Thus, the mere inclusion of his signature on them with knowledge of the falsity of their data does "active subject" of the commission of this crime but not prejudicial because, as we saw, this action is damaging public confidence deposited in activities previously regulated by the State as is their practice. Is giving certainty to a document that is not beyond that then cause or prejudice or constitute a means to cause (Berri, Erlinda E., "The balance ...", cit.).
(48) Bacigalupo, Enrique, "The existing criminal law and the new management of corporations, RDCO, year 6, no. 31/36, 1973 285.
(49) NAVARRO, Guillermo, Broken ..., cit., P. 93.
(50) Cam. Nat Pen. Econ., Room A, LL, 1996-A-98.
(51) Cam. Nat Pen. Econ., Room 3 rd, LL, 1983-C-174.
(52) BÁEZ, Julio, "Balance ...", cit.
(53) According Jeschek, there is talk of intent when it appears as an element of actus reus, ie beyond the target rate and if it is referred to as the type, it requires no catch ... the characteristic of the author's intention is to order their behavior according to the proposed goal and act in the interest of getting it (Jeschek, Hans - HEINRICH, Treaty of criminal law. Party general, 4 th ed., trans. Manzanares José Luis Samaniego, Granada, Comares, 1993, p. 267).
(54) Cam. Nat Pen. Econ., Room 3 meetings, from 20/8/1981, ED, 96-486.
(55) Zaffaroni, Eugenio, Handbook of criminal law. General part Ediar, Buenos Aires, 1993, p. 423.
(56) Bacigalupo, Enrique, Guidelines for the theory of crime, Astrea, Buenos Aires, 1974, p. 74.
(57) Cam. Nat Pen. Econ., Ward 1 meetings, because "Graziosi, Cayetano" of 3/6/1966, ED, 17-490.
(58) Cam. Nat Pen. Econ., Room 3 rd, of 20/8/1981, ED, 96-486, in particular the opinion of the House tax.
(59) Hendler, Edmundo S., responsibility ..., cit., P. 82.
(60) In the same way foreign doctrine is expressed with reference to the figure of the falsity of the statements-art. 290 of CPEN. 1995 English - because the legal right to be protected is already damaged by the publication of statements or false reports (see BACIGALUPO, Enrique, economic criminal law course, Marcial Pons, Madrid, 1998, p. 144) .
(61) DEPREZ, Jean, "The mental element in crimes relating to the balance" in the collective work of the criminal law corporations, dir. by Joseph Hamel, trans. Delia Garcia Daireaux, La Ley, Buenos Aires, 1964, p. 325.
(62) should be emphasized that the lack of punitive reaction against such crimes is not exclusive to Argentina. In the field of Comparative Law in Spain, for example, many entrepreneurs criminal behavior as the machinations to alter the prices of things, the concealment of assets, bankruptcy fraud, crimes against the Treasury and smuggling are not persecuted for criminal justice. For further enlightenment on this subject, see: HORMAZÁBAL Malarée, Hernán, "The socio-economic crimes, the legal right, the author, his deeds and the necessary English reform ", in AA.VV., Towards a European economic criminal law. Symposium in honor of Professor Klaus Tiedemann, Series Public Law, Legal Studies, Madrid, Boletin Oficial del Estado, 1995, p. 191.
(63 ) Affirms Enterría Javier Garcia, the criminal offenses involving corporate crime will inevitably pass through the sieve of commercial law, trying to link the two disciplines, or most of the time, stating irreconcilable contradictions that reported the need for a new reprocessing affected criminal types (García de Enterría, Javier, corporate crimes. A commercial approach, Civitas, Madrid, 1996, ps. 24/25).
(64) However, as noted Klaus Tiedemann, the effectiveness of the ban depends on its implementation is properly monitored to avoid the use of "straw men" and other fraudulent means to escape it (Tiedemann, Klaus, Power economic crime, Civitas, Madrid, 1985, p. 164).
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