LAW NO. 20,393 ESTABLISHES THE CRIMINAL LIABILITY OF LEGAL PERSONS IN THE CRIMES OF MONEY LAUNDERING, TERRORIST FINANCING AND COINCIDENT CRIMES. Bill of Law: Article First.-Approve the following law on the criminal liability of legal persons: " Article 1 °.-Content of the law. This law regulates the criminal liability of legal persons in respect of the offences provided for in Article 27 of Law No 19,913, in Article 8 of Law No 18.314 and in Articles 250 and 251 bis of the Criminal Code; the procedure for the investigation and establishment of such criminal liability, the determination of the penalties and the enforcement of such penalties. As not provided for by this law, the provisions contained in Book I of the Penal Code and the Code of Criminal Procedure and in the special laws mentioned in the previous paragraph will be applicable, in addition, in what will be relevant. For the purposes of this law, the provisions of the second paragraph of Article 58 of the Criminal Procedure Code shall not apply. Article 2 °.-Reaches. The provisions of this law shall apply to legal persons governed by private law and to State undertakings. TITLE I Criminal Liability of Legal Persons 1.-From the attribution of criminal liability of legal persons Article 3 °.-Attribution of criminal responsibility. Legal persons shall be liable for the offences referred to in Article 1 which are directly and immediately in their interest or for their benefit, by their owners, controllers, managers, principal executives, representatives or those who carry out administration and supervision activities, provided that the commission of the offence is a consequence of the failure to comply, on the part of it, of the duties of management and supervision. Under the same assumptions as the previous paragraph, legal persons will also be responsible for crimes committed by natural persons who are under the direct supervision or supervision of any of the subjects mentioned in the previous. The duties of management and supervision shall be deemed to have been fulfilled where, prior to the commission of the offence, the legal person has adopted and implemented models of organisation, administration and supervision to prevent offences as the task, in accordance with the provisions of the following Article. Legal persons shall not be liable in cases where the natural persons referred to in the preceding points have committed the offence solely on their own advantage or in favour of a third party. Article 4 °-Model of prevention of crimes. For the purposes referred to in the third indent of the preceding Article, legal persons may adopt the prevention model referred to therein, which shall contain at least the following elements: (1) Designation of a person in charge prevention. (a) The maximum administrative authority of the legal person is its directory, an administrator, a manager, a principal executive, an administrator, a liquidator, its representatives, its owners or partners, as appropriate administration of the respective entity, hereinafter the "Administration of the Legal Person", must designate a prevention officer, who will last for up to three years, which may be extended for periods of equal duration. (b) The prevention officer shall have autonomy in respect of the Administration of the Legal Person, its owners, its members, its shareholders or its controllers. However, it may carry out internal audit or audit work. In the case of legal persons whose annual income does not exceed a hundred thousand units of promotion, the owner, the partner or the controlling shareholder may personally take over the tasks of the prevention officer. 2) Definition of means and powers of the prevention officer. The Administration of the Legal Person shall provide the prevention officer with sufficient means and powers for the performance of his/her duties, including at least: (a) the material resources and means necessary to perform their duties properly, in consideration of the size and economic capacity of the legal person. b) Direct access to the Administration of the Legal Person to inform it in good time by an appropriate means, of the measures and plans implemented in the performance of its task and to render account of its management and to report at least semestrally. 3) Establishment of a system of prevention of crimes. The prevention officer, in conjunction with the Administration of the Legal Person, must establish a system of prevention of crimes for the legal person, which must include at least the following: a) activities or processes of the entity, whether habitual or sporadic, in the context of which the risk of committing the offences referred to in Article 1 is generated or increased. (b) the establishment of specific protocols, rules and procedures that allow persons to intervene in the activities or processes indicated in the preceding literal, to schedule and execute their tasks or tasks in a manner that prevents Commission of the abovementioned offences. (c) the identification of the procedures for the administration and audit of financial resources that allow the institution to prevent its use in the offences identified. (d) the existence of internal administrative sanctions, as well as procedures for reporting or prosecuting pecuniary responsibilities against persons who fail to comply with the crime prevention system. These obligations, prohibitions and internal sanctions must be stated in the regulations which the legal person gives to the effect and must be communicated to all workers. Such internal rules shall be expressly incorporated in the respective employment and service contracts of all the employees, employees and service providers of the legal person, including the maximum executive officers of the itself. 4) Supervision and certification of the crime prevention system. (a) The prevention officer, in conjunction with the Administration of the Legal Person, shall establish methods for the effective implementation of the crime prevention model and its supervision to detect and correct its failures, as well as update it according to the change of circumstances of the respective entity. (b) Legal persons may obtain the certification of the adoption and implementation of their crime prevention model. The certificate shall state that the model provides for all the requirements laid down in numerals (1), (2) and (3) above, in relation to the situation, size, rotation, level of income and complexity of the legal person. Certificates may be issued by external audit firms, risk classification societies or other entities registered with the Superintendency of Securities and Insurance that may comply with this work, in accordance with the rules that, for these purposes, establish the said audit body. (c) Natural persons who participate in the certification activities carried out by the entities mentioned in the preceding subparagraph shall be understood to be a public function in the terms of Article 260 of the Criminal Code. Article 5 °-Autonomous criminal liability of the legal person. The liability of the legal person shall be independent of the criminal liability of natural persons and shall be the case where, in accordance with the other conditions laid down in Article 3, one of the following situations arises: (1) Individual criminal liability has been extinguished in accordance with the provisions of Article 93 (1) and (6) of the Criminal Code. 2) In criminal proceedings, followed against natural persons referred to in the first and second subparagraphs Article 3 is to delay the temporary dismissal of the person or the accused persons, in accordance with the grounds of points (b) and (c) of Article 252 of the Criminal Procedure Code. Such liability may also be pursued where, having been credited with the existence of any of the offences referred to in Article 1 and the other conditions laid down in Article 3 have been met, it has not been possible to establish the participation of the the individual responsible, provided that in the respective process it is demonstrated that the offence must have necessarily been committed within the scope of the functions and privileges of the persons mentioned in the first subparagraph of the referred to in Article 3. 2.-Of the circumstances that mitigate the criminal liability of the legal person Article 6 °.-Mitigating circumstances. The following shall be extenuating circumstances of the criminal liability of the legal person: (1) The one provided for in Article 11 (7) of the Criminal Code. (2) The one provided for in Article 11 (9) of the Criminal Code. In particular, it shall be understood that the legal person cooperates substantially when, in any state of the investigation or judicial proceedings, his legal representatives have, before knowing that the judicial procedure is addressed, against her, the fact punishable in the knowledge of the authorities or a background to establish the facts investigated. (3) The adoption by the legal person, before the commencement of the trial, of effective measures to prevent the repetition of the same kind of crimes under investigation. 3.-Of the circumstances that aggravate the criminal liability Article 7 °.-Aggravating circumstance. It is an aggravating circumstance of the criminal liability of the legal person, that she was convicted, within the previous five years, for the same crime. TITLE II Consequences of the Declaration of Criminal Responsibility of the Legal Person 1.-Of the penalties in general Article 8 °.-Peñas. One or more of the following penalties shall apply to legal persons: (1) The dissolution of the legal person or the cancellation of the legal personality. This penalty shall not apply to undertakings of the State or to legal persons governed by private law who provide a public utility whose interruption could cause serious social and economic consequences or serious damage to the community, such as result of the application of this penalty. (2) Temporary or perpetual prohibition of the holding of acts and contracts with the State's agencies. 3) Partial or total loss of tax benefits or absolute prohibition of receipt thereof for a given period. 4) Fine for tax benefit. (5) The ancillary penalties provided for in Article 13. Article 9 °-Dissolution of the legal person or cancellation of the legal personality. Dissolution or cancellation will result in the final loss of legal personality. The judgment declaring the dissolution or cancellation shall designate, according to its type and legal nature, and in the absence of any express legal provision, the regulation, or the liquidators responsible for the liquidation of the legal person. Likewise, and in equal conditions, it shall entrust them with the performance of the acts or contracts necessary for: 1) Conclude all activity of the legal person, except those that are indispensable to the success of the liquidation; 2) Pay the liabilities of the legal person, including those arising from the commission of the offence. The time limits for all such debts shall be deemed to have expired in full, making them immediately enforceable, and their payment shall be made in full compliance with the preferences and the ranking of the appropriations laid down in Title XLI of the Civil Code, in particular the rights of the workers of the legal person, and 3) The remaining assets among the shareholders, members, owners or owners, in proportion to their respective shares. The foregoing shall be without prejudice to the right of the persons concerned to seek compensation for the damage suffered against those responsible for the offence. In the case of public limited liability companies shall apply the provisions of Article 133a of Law No 18.046. However, where the social interest so advises, the judge may, by way of resolution, order the disposal of all or part of the assets of the legal person dissolved as a whole or economic unit, at public auction and at the highest bidder. It must be before the judge itself. This penalty may be imposed only in cases of crimes in which the aggravating circumstance laid down in Article 7 is concerned. It may also be applied when convicted of crimes committed in the form of repeated acts, in accordance with the provisions of Article 351 of the Criminal Procedure Code. Article 10.-Prohibition of holding acts and contracts with state agencies. This prohibition consists in the loss of the right to participate as a supplier of goods and services of State agencies. In order to determine this penalty, the court will have the following scale: 1) A perpetual ban on the holding of acts and contracts with state agencies. 2) A temporary ban on the holding of acts and contracts with state agencies. Its duration shall be graduated as follows: (a) To its minimum degree: two to three years. b) In its middle grade: three years and one day to four years. c) To a maximum degree: four years and one day to five years. The prohibition shall be governed by the date on which the decision is implemented. The court will communicate such a circumstance to the Directorate of Purchasing and Public Procurement. That Directorate shall keep an up-to-date register of the legal persons to whom this penalty has been imposed. Article 11.-The partial or total loss of tax benefits or absolute prohibition of receipt of tax benefits for a given period. For the purposes of this law, it shall be understood by tax benefits to be granted by the State or its agencies by means of grants without reciprocal provision of goods or services, and in particular grants for financing of activities. specific programmes and expenses associated with or associated with the realisation of such resources, whether such resources are allocated through eligible funds or under permanent laws or subsidies, grants in special areas or (i) consideration of the arrangements for special and similar statutes. This penalty will be graduated as follows: 1) To its minimum degree: loss of twenty to forty per cent of the tax benefit. 2) In its middle grade: loss of forty-one to seventy percent of the tax benefit. 3) To its maximum degree: loss of seventy-one to one hundred percent of the tax benefit. Where the legal person is not a creditor of such tax benefits, the absolute prohibition of the person's receipt for a period of between two and five years, which shall be counted from the time of the judgment declaring his or her own, shall be applied as a sanction. responsibility is executed. The court must communicate that it has imposed this sanction on the Secretariat and General Administration of the Ministry of Finance and the Secretariat for Regional and Administrative Development of the Ministry of the Interior, in order for it to be entered in the central registers of collaborators of the State and Municipalities that, respectively, Law No. 19,862 entrusts them to administer. Article 12.-Fine for tax benefit. This penalty will be graduated as follows: 1) To its minimum degree: from two hundred to two thousand monthly tax units. 2) In its middle grade: from two thousand one to ten thousand monthly tax units. 3) To its maximum degree: from ten thousand one to twenty thousand monthly tax units. The court may authorise the payment of the fine to be effected by means of a party, within a limit not exceeding 24 months, where the amount of the fine may put at risk the continuity of the transfer of the legal person concerned, or where the social interest as well as advice. The court, once the sentence is executed, will communicate the application of the fine to the General Treasury of the Republic, who will take charge of its collection and payment. Article 13.-Full access. They shall apply, by way of access to the penalties referred to in the preceding Articles, the following: (1) Publication of an extract from the judgment. The court will order the publication of an extract from the resolutive part of the sentence in the Official Journal or other national circulation journal. The sanctioned legal person will bear the costs of that publication. 2) Comiso. The proceeds of the crime and other goods, effects, objects, documents and instruments of the same shall be seized. (3) In cases where the offence committed involves the investment of resources of the legal person in excess of the income which it generates, the whole in tax coffers shall be imposed as a penalty of an amount equivalent to the investment made. 2.-The determination of penalties Article 14.-General scale. The penalty imposed on the legal person shall be determined in relation to that provided for in the corresponding offence referred to in Article 1, in accordance with the following scale: General Scale of Penas for Legal Persons 1.-Penas for crimes. (a) the dissolution of the legal person or the cancellation of the legal personality; (b) Prohibition of concluding acts and contracts with state bodies to their maximum degree in perpetuation. c) Loss of tax benefits to their maximum degree or absolute prohibition of receipt of the same three years and one day to five years. d) Fine for tax benefit, to its maximum degree. In such cases, the penalties referred to in Article 13 shall always be applied as ancillary. 2.-Peñas of simple crimes. a) A temporary ban on the holding of acts and contracts with state agencies in their minimum degree to a minimum. b) Loss of tax benefits in their minimum degree to medium or absolute prohibition of receipt of the same from two to three years. c) Fine in its minimum degree to medium. In such cases, the penalties referred to in Article 13 shall always be applied as ancillary. Article 15.-Legal determination of the penalty applicable to the crime. The penalties provided for in Articles 250 and 251 bis of the Penal Code, and in Article 8 of Law No 18.314, shall be applied to the penalties provided for in this law for simple offences, in accordance with the provisions of the previous article. The offence referred to in Article 27 of Law No 19,913 shall be applicable to the penalties for crimes, as set out in the preceding article. Article 16.-Amending circumstances of liability. In the event of a mitigating circumstance and no aggravating circumstance, only two of the penalties referred to in Article 14 shall be applied for simple offences, one of which shall be at least one of them. In the case of crimes, the court shall apply only two of the penalties referred to in that Article in its minimum, if applicable. In the event of the aggravating circumstance referred to in this law and no attenuating, dealing with simple crimes the court will apply all the penalties to its maximum degree. In the case of crimes, penalties must be applied in their maximum, if applicable, or dissolution or cancellation. If there are two or more mitigating circumstances and no aggravating circumstances, dealing with simple crimes, the court will have to apply only a penalty, and can be carried out in its entirety. In the case of crimes, two penalties should be applied for crimes. If several attenuants are present and the aggravation provided for in this law shall be compensated rationally with any of the attenuants, and the penalties must be adjusted in accordance with the foregoing. Article 17.-Rules of judicial determination of the sentence. In order to regulate the amount and nature of the penalties to be imposed, the court must attend to the following criteria: 1) The amounts of money involved in the commission of the crime. 2) The size and nature of the legal person. 3) The economic capacity of the legal person. (4) The degree of subjection and compliance with legal and regulatory regulations and the technical rules of compulsory observance in the exercise of their habitual rotation or activity. 5) The extent of the evil caused by the crime. (6) The seriousness of the social and economic consequences or, where appropriate, the serious damage which may be caused to the community by the imposition of the penalty, in the case of State-owned undertakings or undertakings providing a public utility service. Article 18.-Transmission of the criminal liability of the legal person. In the case of conversion, merger, absorption, division or dissolution by common or voluntary agreement of the legal person responsible for one or more of the offences referred to in Article 1, his responsibility for the offences committed with prior to the occurrence of any such act shall be transmitted to the legal person or persons resulting therefrom, if any, in accordance with the following rules, without prejudice to the rights of third parties in good faith. (1) If the penalty is imposed, in the case of conversion, merger or absorption of a legal person, the resulting legal person shall be liable for the total amount. In the case of division, the resulting legal persons shall be jointly and severally liable for payment of the same. (2) In cases of dissolution of the common agreement of a legal person for profit, the fine shall be transmitted to the shareholders and members of the capital, who shall respond to the limit of the value of the settlement fee which has been given to them. assigned. (3) If it is any other penalty, the judge will assess, taking into account the purposes that are pursued in each case, their convenience. In order to take this decision, it will have to pay particular attention to the substantial continuity of the material and human resources and the activity carried out. (4) Since the hearing has been requested to formalise the investigation against a non-profit legal person and until the absolute or damning judgment and as long as the judgment is not fulfilled, the authorization of the first paragraph of Article 559 of the Civil Code. 3.-Extinction of the criminal liability of the legal person Article 19.-Extinction of the criminal liability. The criminal liability of the legal person is extinguished by the same causes as mentioned in Article 93 of the Penal Code, except for the one provided for in its number 1 °. TITLE III Procedure 1.-Initiation of the investigation of the criminal liability of the legal person Article 20.-Investigation of the criminal liability of the legal persons. If, during the investigation of any of the offences referred to in Article 1, the Public Ministry is aware of the possible participation of any of the persons referred to in Article 3, it shall extend that investigation to the end of determine the liability of the relevant legal person. Article 21-Application of the rules relating to the imputed. As is not regulated in this law, the provisions concerning the accused, the accused and the sentenced person, established in the Criminal Procedure Code and in the respective special laws, shall apply to legal persons, provided that they are compatible with the specific nature of legal persons. In particular, the provisions of Articles 4, 7, 8, 10, 93, 98, 102, 183, 184, 186, 193, 194 and 257 of the Code of Criminal Procedure, rights and guarantees which may be exercised by any representative of the person, shall apply to them. legal. Article 22.-Formalization of the investigation. Where the prosecutor considers it appropriate to formalize the procedure directed against the legal person, he shall request the court of guarantee to subpoena the legal representative of that person, in accordance with Article 230 et seq. of the Code of Procedure Penalty. It shall be a prerequisite to proceed in such a way, at least, that a hearing on the formalisation of the investigation has been requested or a requirement is made in accordance with the rules of the simplified procedure with respect to the natural person. which may compromise the liability of the legal person as provided for in the first and second subparagraphs of Article 3, except in the cases provided for in Article 5. The application shall also contain the individualisation of the legal representative of the legal person. Article 23.-Representation of the legal person. If summoned to appear before the court, the legal representative of the accused legal person shall not appear unjustifiably, the court may order that he be arrested until the conduct of the hearing, which shall be be made within a maximum of 24 hours after the deprivation of liberty occurs. If the legal representative is not there, the prosecutor will ask the court to appoint a public criminal defender, who will perform the function of a curator ad litem, representing the legal person. In any event, the legal person may at any time designate a defender of his or her trust. Where the criminal procedural law requires the presence of the accused as a condition or requirement for the conduct of a hearing, it shall be understood that such a requirement is satisfied with the presence of the curator ad litem or the trust defender, in his case. They shall, for those purposes, provide for the warnings provided for in the first subparagraph. Article 24-Provenance of the application of the principle of opportunity. The provisions of Article 170 of the Criminal Procedure Code shall not apply in respect of the criminal liability of the legal person. Article 25.-Conditional suspension of the procedure. The conditional suspension of the procedure may be decreed provided that there is no sentence or other conditional suspension of the procedure in force in respect of the legal person charged for some of the offences provided for in this law. The guarantee judge shall, as appropriate, provide that during the period of suspension, which may not be less than six months and not more than three years, the legal person is subject to compliance with one or more of the following conditions: 1) Paying a certain amount for tax benefit. 2) To provide a certain service in favor of the community. 3. periodically inform the financial statement of the institution to be determined. (4) Implement a programme to make the model of organisation, administration and supervision referred to in Article 4 (1) effective. (5) Any other condition which is appropriate in consideration of the circumstances of the specific case and is proposed, on the basis of the Public Ministry. In cases where the judge imposes the measure indicated in number 1, he must inform the General Treasury of the Republic. Article 26-Determination of the procedure applicable to the criminal liability of the legal person. If the prosecutor, when accusing or requiring in accordance with the rules of the simplified procedure, requests the application of any of the penalties contemplated for the simple crimes, in his minimum degree, the knowledge and failure of those will be realized in accordance with the rules of the simplified procedure. In cases where the prosecutor will charge only criminal or simple crime in his/her middle grade, his/her knowledge and judgment will be made in accordance with the rules of the oral trial of Title III of the Criminal Procedure Code II. If the prosecutor requires or charges the natural and legal person in the same act, it shall be followed in accordance with the procedure applicable to the natural person. The foregoing shall not apply in the case of criminal penalties. With regard to the criminal liability of legal persons, the order for payment procedure shall not apply. Article 27.-Short procedure. The procedure laid down in Articles 406 and following of the Criminal Procedure Code shall be applicable in order to determine the liability and to impose the penalties provided for in this Law. This procedure will be followed in order to know and to fail the facts in respect of which the prosecutor requires the imposition of one or more penalties of simple crime. The court will not be able to impose a higher or more unfavorable penalty than the one required by the prosecutor. Article 28.-Defense of legal persons. Any legal person who cannot seek defence by his own means shall have the right to ask the judge to appoint a public criminal defender. Article 29-Suspension of the sentence. If, in the judgment of the Court of Justice, the court finds that it is a matter of a simple offence to its minimum, it may, by way of exception, in exceptional circumstances, in particular by taking into account the number of workers or annual net sales or (a) the company's export amounts, the suspension of the sentence and its effects for a period of not less than six months and not more than two years. In this case, the court will be able to subtract from this effect the ancillary penalty of comiso. In the case of undertakings of the State or of undertakings providing a service of public utility whose interruption could cause serious social and economic consequences or serious damage to the community, the judge may have the suspension in any case. the penalty charged list in the judgment. After the period laid down in the first subparagraph without the legal person having been subject to a new formal notice or a new formalisation of the investigation, the court will leave the judgment without effect and, in its replacement, the court will rule on the definitive withdrawal of the cause. This suspension does not affect civil liability arising from the offence. ' Article 2.-Introduces, in Article 294 bis of the Penal Code, the following second indent: " Where the association has been formed through a legal person, it shall also be imposed as a consequence of the penalty imposed on the (a) individual decision-makers, the dissolution or cancellation of the legal personality. '; Article 3.-Introduces, in Article 28 of Law No. 19,913, which creates the Unit for Financial Analysis and modifies various provisions on laundering and laundering of assets, the following second indent: " When the association has been It shall also, as a consequence of the penalty imposed on the individual responsible, be imposed on the dissolution or cancellation of the legal personality. ' And because I have had to approve and sanction it; therefore, promulgate and take effect as the Law of the Republic. Santiago, 25 November 2009.-MICHELLE BACHELET, President of the Republic.-Andrés Velasco Branes, Minister of Finance.-Edmundo Pérez Yoma, Minister of the Interior.-Mariano Fernández Amunategui, Minister of Foreign Affairs.-Carlos Maldonado Curti, Minister of Justice. What I transcribe to you for your knowledge.-Saluda Atté. to you, Maria Olivia Recart Herrera, Deputy Finance Secretary.