Law 7/2012, Of 27 December, Amending The Organic Law 10/1995 Of 23 November, Of The Criminal Code On Transparency And Fight Against Fiscal Fraud And Social Security.

Original Language Title: Ley Orgánica 7/2012, de 27 de diciembre, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal en materia de transparencia y lucha contra el fraude fiscal y en la Seguridad Social.

Read the untranslated law here: https://www.global-regulation.com/law/spain/1491196/ley-orgnica-7-2012%252c-de-27-de-diciembre%252c-por-la-que-se-modifica-la-ley-orgnica-10-1995%252c-de-23-de-noviembre%252c-del-cdigo-penal-en-materia-de-trans.html

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JUAN CARLOS I King of Spain to all that the present join together and act.

Know: That the Cortes Generales have approved and I come in to sanction the following law.

PREAMBLE I the criminal code, as it points out the exhibition of motives of organic law 10/1995 of 23 November, protects the values and basic principles of social coexistence, and its content should be adjusted to the changes and the needs of the current situation.

The axis of the criteria that inspire the present reform corresponds to the strengthening of transparency in the activity of the Administration and the regime of responsibility of political parties and trade unions, which is included within the general regime of criminal responsibility of legal persons which, until now, were excluded; and on the other, with the improvement of the efficiency of the instruments of control of revenues and spending, which is revealed to be an essential element of the set of measures adopted on the occasion of the crisis economic, especially severe at European level, and more specifically in the Spanish case, as well as the need to accompany them the reforms needed in the sectors or economic activities concerned; economic activities in which, on the other hand, there is a greater perception of fraud and that is precisely where the specific penal reforms should be adopted.

For this purpose, in criminal matters is required a thorough review of the offences against the public Treasury and Social Security, regulated in Title XIV of the criminal code. The objectives of the reform in the field of tax are: the creation of an aggravated kind offering response to particularly serious fraud and that raise the penalty of imprisonment up to a maximum duration of six years, which in turn determines that the period of limitation of the most serious offences is 10 years; enabling the prosecution of the organized plots of tax fraud by facilitating the immediate denunciation after reaching the minimum amount of fraud; increase the chances of unpaid tax debt collection avoiding the paralysis of the administrative procedure by the criminal process; introduce technical improvements in the regulation of the fraud to the Treasury and to the budgets of the European Union; avoid the complaint before the courts of those forced tributaries that have regularised, complete and voluntarily, your tax situation. Also will provide for mechanisms to reduce the penalty for those defendants who, once started the criminal process, satisfy the tax debt or collaborate in the judicial investigation.

The reform, which takes place in crimes against Social Security affects basic type to reduce the amount from which the infringement is constitutive of the crime and facilitate adjustments. With a scheme similar to that used for the regulation of tax crime, an aggravated type that allows the prosecution of corporate frames behind which is hidden the true entrepreneur is introduced to circumvent payment of contributions to Social Security for their workers. At the same time, enters a specific type for the criminalization of the fraud performance of the system of Social security through a criminal differentiated treatment of fraudulent obtaining of grants and subsidies that offers an effective response to cases of fraud with serious breach for the heritage of Social Security. Also in this case provides an aggravated kind that is made against new forms of criminal organization engaged in these activities or propitiatory of the fictitious enterprises created with the sole purpose of the performance of the system.

An amendment to the crimes against the rights of workers referred to in title XV of the criminal code is also carried out, to punish those who violate so serious labour regulations with behaviors that also represent unfair competition unfair with regard to companies, entrepreneurs and workers self-employed, are keepers of their legal obligations.

Finally, within the set of proposed measures to provide transparency to the public sector and strengthen confidence in public institutions, a new criminal type is set to sanction the conduct of concealment, simulation and distortion of the public accounts.

II first, amending the regulation of the criminal responsibility of legal persons for the purpose of including political parties and trade unions within the general regime of responsibility, by deleting the reference to them so far is contained in the exception regulated in paragraph 5 of article 31 bis of the criminal code. Thus the perception of impunity for these two actors in political life which moved the former regulation is exceeded, and extends to them, in the cases provided by law, the responsibility for the illegal actions carried out on its own and on their behalf, by their managers and legal representatives, or by the subject to the authority of the above when not ever a control right over them.

(III) in second place, made technical improvements in the classification of crimes against the public Treasury in article 305 of the Penal Code, which are intended to facilitate the prosecution of these crimes and correcting shortcomings observed in its application.

A first modification has been set the regularization of the tax situation as the reverse true crime so that, with the regularization, is neutralized not only the unworthiness of the action, with a complete and truthful statement, but also the unworthiness of the result using the full payment of the tax debt and not only the tax share as it is currently.

This new configuration of regularization does this to save an equivalence relation practice with the timely payment of the tax, as they have highlighted both the Office of the Attorney-General and the Supreme Court, which in a very expressive manner have referred to the regularization as the return to legality that puts an end to the protected legal asset provisional injury caused by infringement consummated with the initial non-compliance with tax obligations.

Consistent with this new legal configuration of the regularization of the tax as the reverse of the crime which completely neutralizes the unworthiness of the conduct and the unworthiness of the result, is considered the regularization of the tax situation banishes the unfair derivative of the initial failure to tax and so reflected in the new wording of the criminal type that ties the disappearance of criminal blame to that return to the legal fold. This amendment complements the of paragraph 4 concerning regularization deleting mentions that conceptuaban it as an excuse of an acquittal.

Introduces a new clause which allows the tax administration to continue the administrative procedure for collection of the tax debt despite the pendency of the criminal process. With this reform is eliminate situations of privilege and placing the alleged offender in the same position as any other tax debtor, and time increases the efficiency of the performance of management control: the only pendency of the judicial process paralyzes not collection action but may paralyze the judge always that guarantee the payment of the debt or the judge considers that they could be impossible or difficult to repair damage. And also a demand of the community order, served since the Community authorities come calling on Spain a reform of its legal system so that the existence of the criminal proceedings does not paralyze the action of collection of the tax debt constituting own resources of the European Union.

With regard to the determination of the tax share disappointed, the reform introduces two relevant modifications. On one hand, it clarifies the amount defrauded in the field of income of the Finance of the European Union shall be determined by relation to the calendar year. On the other hand, is introduced a special rule to be able pursue wefts of organized criminality immediately from the moment in which the fraud exceeds the determining minimum amount of crime.

An attenuation of the penalty is also expected when the alleged perpetrators of the crimes recognize his Commission and fully satisfy the tax debt or collaborate with the authorities for the ascertainment of the facts and, where appropriate, identification or capture of other responsible, provided that such recognition, payment and cooperation occur in a short period of time.


Also within crimes against the public Treasury, provides a new type aggravated in article 305 bis to define the behaviors of more serious or more complex in its discovery, which is punishable with a maximum sentence of six years, which, by the application of article 131 of the criminal code, would entail increasing the limitation period to ten years to hinder the impunity of these behaviors serious by the passage of time. Aggravated cases are those in which the amount of disappointed share exceeds six hundred thousand euros, quantitative limit targeted by the jurisprudence; those in which the infringement is committed at the heart of an organization or of a criminal group; or in which the use of people, business, instruments or territories difficult determining the identity or heritage of the true forced tax or responsible for the crime or the amount of disappointed. Expressed with reference to tax havens and territories of null taxation provides greater certainty and legal security to the precept all time dealing with concepts already defined in the first additional provision of law 36/2006, of 29 November, of measures for the prevention of tax fraud.

In addition, the wording of article 306 of the criminal code is modified to clarify the difference of typical behavior with the provided in paragraph 3 of article 305, and to consolidate the current articles 306 and 309 in a single precept. Cases in which the infringement does not reach the 50,000 euros but exceeds four thousand euros are punished as crimes in paragraph 3 of article 305 and section 306, disappearing typing such as lack of current articles 627 and 628.

Finally, article 310 amending bis of the Penal Code due to the need to harmonise the penalties imposed on legal persons responsible for offences against the public Treasury, with the already planned for the individuals responsible for the same crimes, so that, on one hand, enters the letter b) the penalty of fine from double to quadruple in aggravated cases whose regulation is proposed in the new article 305 bis and (, on the other hand, added a new second paragraph which provides the imposition to legal persons responsible for these crimes of sentences that the letter f) and paragraph 7 of article 33 provides as a general rule, or already imposed by paragraph 1 of article 305 for natural persons.

IV as regards offences against Social Security, article 307 of the criminal code for the purposes of reducing to 50,000 euros the amount which establishes the criminal type as a condition is reformed objective of criminality. The fixing of the limit should be subject to economic, political and social criteria. The social and economic situation highlights the need to act more forcefully against allegedly criminal conduct and organized plots that endanger the financial sustainability of the Social security system. The reduction of the amount of the criminal type allows that are punishable criminal acts which currently are only punishable administratively and that are subject of a hard-hitting social rebuke in special difficult economic times in the business field as the current.

In practice are given assumptions that is interpreted there is no crime against Social security by the mere fact that quote documents, have been submitted without going to assess whether they are truthful and complete. It is also frequent that in cases of fraud involving people filed, precisely, seemingly correct quotation documents is part of the deception. For this reason, added a last paragraph to clarify that the mere presentation of the contribution documents does not preclude the disapointment if this is accredited by other facts. The subsection does not imply any conceptual changes, but it tries to fix the authentic interpretation of the standard.

Subsection was also included in article 305 referred to the offence against the public Treasury to avoid that his absence could be interpreted in the sense that the mere submission of statements or self-assessments excluded in any case infringement.

It is introduced, equally, a new type of aggravated in cases of particularly serious conduct by the evaded amount or other concurrent circumstances of special authority, such as the use of corporations or brought people to hide the real responsible for the payment of Social security contributions, and which justify a greater criminal blame. The aggravation of the penalty carries the ampliaciondel period of prescription of the crime, essential in these cases by its complexity of difficult and late detection, and with the extension of the maximum sentence to six years in prison, one more to the current, extending the limitation period to ten years.

For the aggravated both ordinary type has been considered coming to pick up expressly imposing responsible for the accessory penalties of loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social Security, whose duration will vary in accordance with the gravity of the type.

Parallel to the crime against the public Treasury, the regularization of the situation is configured before Social security as the reverse of the crime which completely neutralizes the unworthiness of the conduct and the unworthiness of the result, so it makes disappear the criminal character of the initial non-Social Security.

Also modifies article 308 of the Criminal Code relating to the fraud of grants or subsidies from public authorities or the Social Security. Due to the old concept of grant and certain case law interpretations, has come to be considered as a grant to benefit and unemployment benefit. This has been understood that in these cases there was only disappointment when the amount exceeded the figure of one hundred twenty thousand euros, other cases being decriminalized. Therefore, article 308 of the criminal code is reformed to keep within the regulation of subsidy fraud only supports and subsidies from public authorities when the amount exceeds the figure of one hundred twenty thousand euros. As regards the system of Social Security benefits, preying behaviour is classified in a new provision, article 307 ter, punishing them with a penalty to the gravity of the fact: imprisonment from six months to three years in ordinary cases; fine of the both the manometer in cases which are not serious; and imprisonment from two to six years and a fine of the both the manometer in aggravated cases. In all cases is expected to also impose the person responsible for the loss of the possibility of obtaining grants and the right to enjoy tax incentives or benefits or Social Security. This solution allows you to treat a better criminal fraudulent conduct against Social Security, and avoids the risk of impunity for those serious fraud that so far not exceeded the quantitative limit set.

Article 307 ter, on the specific treatment of these fraudulent behaviors, comes also to facilitate the pursuit of new rasters organized fraud of Social security which, through the creation of fictitious companies, are sole purpose the obtaining of benefits of the system with the consequent aggravation of the penalty.

V the current configuration of the crime against the rights of workers contained in article 311 of the criminal code, in view of the subjective elements required for the concurrence of the illicit, hinders the application of the criminal to hold accountable those who, collectively, are in breach of obligations that correspond to them in relation to the obligatory assurance , or with regard to the mandatory authorizations to work of those who deal in their business activities.

Who, massive or collectively, resorts to the use of workers without having formalized its incorporation into the Social security system that corresponds to them, or without having obtained the required authorization to work in the case of foreigners who require it, should merit the corresponding criminal blame.

The damage caused by these behaviors are evident. On the one hand, the denial of rights that may correspond to the workers for the period in which provide services of irregularly shaped Social Security. On the other hand, pernicious effects presenting to business and economic relations that there are those who produce goods and services at much lower labor costs that have support those others that make it fulfilling their legal obligations in the matter, which distorts competition and discourages entrepreneurship.

If the conduct is serious in any case, and therefore is already condemned as such in the administrative field, the criminal sanction is made depending upon a certain number of workers employed and affected, in accordance with the limitation of the punitive reproach to the most severe behaviors.

Own gravity of these behaviors motivates that the sanction be expanded the possible imposition of a maximum sentence of six years in prison, which again allows to increase the limitation period up to ten years.

VI


Article 398 of the Penal Code shall be amended to exclude from the type of certificates relating to Social Security and public finances. The falsification of certificates of status of contributions by the debtor companies of Social Security, such as contractors or subcontractors, to major firms or contractors within the framework of the legal relationship of contracts is not uncommon or subcontractors. Exist a criminal type of falsification of certificates, arose the question if these behaviors should qualify as a false official document committed by private individuals, or as falsity of certified task by individuals. It has been estimated suitable a redrafting of article 398 to which refers article 399 of the Penal Code, which restricts its application to the falsification of certificates of lesser importance and which expressly exclude all certificate relating to Social Security and public finances, given the significance in the false in the field of tax certificates and Social Security legal traffic.

VII finally, included a new article 433 bis whose purpose is to give maximum transparency in the public sector and to ensure confidence in the veracity of the information that reflects the economic situation of the administrations and public entities.

This purpose is punishable to the authority or public official you distort accounting, documents or information which should reflect its economic situation, when it is carried out in a suitable manner to cause economic damage to the public entity of which depend on. The standard incorporates a rule that solves the problems of possible competition of this crime with the of forgery, of preferential application, and is therefore especially applicable to counterfeiting and mendacity of internal documents which, however, are relevant to decision-making of economic significance.

Also, creates distortions of information of economic significance which not is originally part of a document, but that is further reflection in the same. Thus problems of authenticity that can arise are solved when the author does not emit false document, but it is limited to introduce false information which is then built to written documentary support or otherwise.

And, with the same purpose, creates the facilitation of this mendacious to third parties information, when such conduct is to cause economic damage to the administration.

All these behaviors, insofar as not whether the assumptions of public or official documents forgery - punishable by articles 390 and 393 of the Penal Code - are punished with fines and disqualification, and imprisonment in the event of effective economic injury causation.

Article only. Modification of the organic law 10/1995 of 23 November, of the criminal code.

The organic law 10/1995, of 23 November, of the Penal Code, is hereby amended as follows: one. Paragraph is modified first of paragraph 5 of article 31 bis, which is worded as follows: "5. the provisions on the criminal liability of legal persons shall not apply to the State, institutional and territorial public administrations, to the regulatory bodies, agencies and public business entities, public international organizations, or others exercising powers of sovereignty» , administrative or in the case of State corporations that run public policies or provide services of general economic interest.

(…)»

Two. Article 305 is drawn up in the following way: «1. which, by action or omission, disappointed at the Treasury, State, regional, provincial or local, evading the payment of taxes, amounts retained or who had due withheld or payments on account, unduly obtaining refunds or enjoying tax benefits in the same way, always to the amount of the share disappointed» the amount not entered the deductions or income account or the return or unduly obtained or enjoyed tax benefits exceed one hundred twenty thousand euros will be punished with the penalty of imprisonment from one to five years and a fine of the both the manometer of the quoted amount, unless it has regularised its tax status under the terms of paragraph 4 of this article.

The mere filing of statements or self-assessment does not exclude infringement, when this is accredited by other facts.

In addition to the above-mentioned penalties, will be imposed to the person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of three to six years.

2 a the purposes of determining the amount mentioned in the previous paragraph: to) if it is taxes, withholdings, payments on account or returns, newspapers or periodic declaration, it will be to the disappointed in each tax period or declaration, and if they are less than 12 months, the amount of the disappointed will refer to the calendar year. However, in cases where the infringement is carried out at the heart of an organization or a criminal group, or by persons or entities acting under the guise of a real economic activity without developing it effectively, crime to be prosecuted from the moment in which the amount fixed in paragraph 1 is reached.

(b) in other cases, the amount means referred to each of the various concepts by which a taxable is susceptible to settlement.

3. the same penalties shall be imposed when the acts described in paragraph 1 of this article are committed against the property of the European Union, provided that the disappointed amount exceeds fifty thousand euros in the period of a calendar year. However, in cases where the infringement is carried out at the heart of an organization or a criminal group, or by persons or entities acting under the guise of a real economic activity without developing it effectively, the crime will be prosecuted from the moment they set this section amount is reached.

If the disappointed amount not surpassed the 50,000 euros, but it exceeds four thousand, will be imposed a penalty of imprisonment from three months to one year or a fine of the both the triple of the aforementioned amount and the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of six months to two years.

4 shall be deemed regularised tax situation when there is proceeded by the taxpayer in full recognition and payment of the tax debt, until by the tax administration has been reported the beginning of performances by checking or research aimed at the determination of the tax debts subject to regularization or, in the case that such acts had not occurred before the public prosecutor, the State Attorney or the procedural representative of the regional, provincial or local administration concerned, brought lawsuit or complaint against him directed, or until the public prosecutor or the judge of instruction carry out actions that allow you to have formal knowledge of the initiation of proceedings.

Also, the effects of the adjustment provided for in the preceding paragraph will be applicable when tax debts are met once prescribed the right of Administration to administrative determination.

The regularization by the taxpayer of its tax status will prevent that you pursued him for possible accounting irregularities or other instrumental falsehoods which, exclusively in relation to the tax debt subject to regularization, it could have committed prior to the regularization of his tax status.

5. when the tax administration detects evidence of having committed an offence against the public Treasury, you can liquidate separately, on the one hand the concepts and amounts that are not linked to the possible offence against the Treasury, and on the other, that are linked with the possible offence against the public Treasury.

The settlement indicated in first place in the previous paragraph will follow the ordinary procedure and is subject to the resources of all tax clearance scheme. And liquidation which may derive from concepts and amounts that are linked with the possible offence against public finances will continue processing which in effect set the tax legislation, without prejudice to that finally fits what is decided in the criminal process.

The existence of criminal proceedings for crimes against the public Treasury not stop the action of tax debt collection. Action aimed at the collection, unless the judge, ex officio or upon request, any agreed suspension of execution actions, prior provision of warranty may be initiated by the tax administration. If warranty in whole or in part may not be lent, exceptionally the judge may agree the suspension with total or partial waiver of guarantees if it detects that the execution could cause irreparable damage or very difficult to repair.


6. the judges and courts may impose to the taxpayer or to the author of the crime the punishable in one or two degrees, provided that, until two months have elapsed since the subpoena as imputed to satisfy the tax debt and legally recognize the facts. This will be equally applicable to other participants in the crime other than the taxpayer or the perpetrator of the crime, when they actively collaborate to obtain decisive evidence for identification or capture of other responsible, for full clarification of criminal acts or the ascertainment of the heritage of the taxpayer or others responsible for the crime.

7. in proceedings for the offence referred to in this article, for the execution of the penalty of fine and civil liability, including the amount of the tax debt to the tax administration not been settled by prescription or other legal cause in the terms provided in the law 58/2003 General Tributaria, of 17 December, including delay interests Judges and courts will seek the help of the services of the tax administration that require them for the administrative enforcement proceedings on the terms set out in the Act.

3. Added article 305 bis, which is drawn up in the following way: the amount of disappointed quota exceeding six hundred thousand euros.»

(b) that the infringement has been committed in the heart of an organization or of a criminal group.

(c) that the use of natural or legal persons or entities without legal personality lodged, business or trust instruments or tax havens or territories of no taxation to hide or makes it difficult for the determination of the identity of the taxpayer or the person in charge of the offense, the determination of the amount of disappointed or heritage of the taxpayer or the person responsible for the crime.

2. in the cases described in this article will you apply all remaining provisions contained in article 305.

In these cases, in addition to the penalties mentioned, will be imposed to the person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of four to eight years.»

Four. Section 306 is drawn up follows: «who by action or omission defraud the general European Union budget or others managed by the amount exceeding 50,000 euros, outside the cases referred to in paragraph 3 of article 305, to elude the payment of amounts to be entered, giving the proceeds to an application other than the one that are destined or unduly obtaining funds faking the conditions required for its» grant u hiding which would have prevented it, shall be punished with the penalty of imprisonment from one to five years and a fine of the both the manometer of the quoted amount.

If the amount disappointed or applied improperly not exceeds fifty thousand euros, but it exceeds four thousand, will be imposed a penalty of imprisonment from three months to one year or a fine of the both the triple of the aforementioned amount and the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of six months to two years."

5. Article 307 is drawn up in the following way: «1. which, by action or omission, defraud welfare evading the payment of dues of this and concepts of joint fundraising, obtaining improperly returns the same or enjoying deductions for any concept also improperly, provided that the amount of unfulfilled quotas or returns or undue deductions exceed fifty thousand euros shall be punished with imprisonment of one to» five years and a fine of the both the manometer of the quoted amount except that any regularized their situation before the Social Security under the terms of paragraph 3 of this article.

The mere presentation of the contribution documents does not exclude fraud, when this is accredited by other events.

In addition to the above-mentioned penalties, will be imposed to the person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of three to six years.

2. for the purpose of determining the amount referred to in the preceding paragraph shall apply the total amount defrauded over four calendar years.

3 be regularised the situation before the Social security when it has proceeded by the obligor against the Social Security full recognition and payment of debt until notified you the initiation of Commission action aimed at the determination of debt or, where such actions there had been, until the public prosecutor or the counsel of the Social Security brought lawsuit or complaint against him directed or before the public prosecutor or the judge of instruction carry out actions that allow you to have formal knowledge of the initiation of proceedings.

Also, the effects of the adjustment provided for in the preceding paragraph, will be applicable when debts are met before Social Security once prescribed the right of Administration to administrative determination.

The regularization of the situation before Social Security will prevent that subject said pursued it by accounting irregularities or other instrumental falsehoods which, exclusively in relation to the debt subject to regularization, the same could have committed prior to the regularization of their status.

4. the existence of criminal proceedings for crimes against Social security does not stop the administrative procedure for the liquidation and payment of the debt to Social Security, unless the judge agreed upon provision of warranty. In the event that no warranty in whole or in part, the judge, on an exceptional basis, could be it may agree with waiver total or partial guarantees, in the event that you appreciate that the execution could cause irreparable damage or suspension of very difficult to repair. The administrative liquidation is finally set to what is decided in the criminal process.

5. the judges and courts may impose to the obligor against the Social security or the perpetrator of the crime the punishable in one or two degrees, provided that, until two months have elapsed since the subpoena as accused, satisfy the debt to Social Security and legally recognize the facts. This will be equally applicable to other participants in the crime other than the debtor to Social security or the perpetrator of the crime, when they actively collaborate to obtain decisive evidence for identification or capture of other responsible, for full clarification of criminal acts or the ascertainment of the patrimony of the obligor against the Social security or others responsible for the crime.

6. in proceedings for the offence referred to in this article, for the execution of the penalty of fine and civil liability, which shall include the amount of the debt against the Social Security Administration has not settled by prescription or other legal cause, including delay interests, judges and courts will seek the help of the services of the Social Security Administration that require them for the administrative enforcement proceedings."

6. It introduces a new 307 bis, which is drawn up in the following way: the amount of unfulfilled quotas or returns or undue deductions exceeding one hundred twenty thousand euros.»

(b) that the infringement has been committed in the heart of an organization or of a criminal group.

(c) that the use of natural or legal persons or entities without legal personality lodged, business or trust instruments or tax havens or territories of no taxation to hide or makes it difficult for the determination of the identity of the obligor against the Social security or the person in charge of the offense, the determination of the amount of disappointed or the patrimony of the obligor against the Social security or the person responsible for the crime.

2. in the cases described in this article will you apply all remaining provisions contained in article 307.

3. in these cases, in addition to the penalties mentioned, will be imposed to the person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of four to eight years.»

7. It introduces a new article 307 ter, with the following wording: «1. who get, for himself or for another, the enjoyment of the benefits of the Social security system, the misuse of the same extension, or facilitate your obtaining, by means of the error caused by the simulation or misrepresentation of facts, or hiding aware of facts which had the duty to inform others» causing a prejudice to the public administration, shall be punished by the penalty from six months to three years in prison.


When the facts, in view of the amount of disappointed, the means employed and the personal circumstances of the author, are not especially serious, they will be punished with a penalty of fine of the both to the manometer.

In addition to the above-mentioned penalties, will be imposed to the person responsible for the loss of the possibility of obtaining grants and the right to enjoy the benefits or tax or Social security during the period of three to six years.

(2. when the value of the benefits were greater than fifty thousand euros or had frequented any of the circumstances referred to in the letters b) or c) of paragraph 1 of article 307 bis, shall be liable to a penalty of imprisonment from two to six years and a fine of both to the manometer.

In these cases, in addition to the above-mentioned penalties, will be imposed to the person responsible for the loss of the possibility of obtaining grants and the right to enjoy the benefits or tax or Social security during the period of four to eight years.

3 shall be exempt from criminal responsibility in relation to the acts described in the preceding paragraphs which refund an amount equal to the value of the received benefit increased by an annual interest equal to the legal interest of the money increased by two percentage points, from the moment in which perceived them, until notified him the initiation of actions of inspection and control in relation to the same or , in the event that such actions have not have occurred, until the public prosecutor, the Attorney for the State, the counsel of the Social Security, or the representative of the regional or local administration concerned, brought lawsuit or complaint against him directed or before the public prosecutor or the judge of instruction carry out actions that allow you to have knowledge formal initiation of proceedings.

Exemption from criminal responsibility referred to in the preceding paragraph will also reach this subject by possible instrumental falsehoods which, exclusively in relation to unfulfilled benefits subject to reinstatement, he might have committed prior to the regularization of their status.

4. the existence of criminal proceedings for any of the offences in paragraphs 1 and 2 of this article, shall not prevent the competent administration to demand reinstatement by administrative of improperly obtained benefits. The amount that should be refunded shall be provisionally fixed by the Administration, and will then adjust to what is finally resolved in the criminal process.

Criminal procedure does not stop the action for recovery of the competent administration, which may initiate action aimed at the collection unless the judge, ex officio or upon request, any agreed suspension of delivery execution performances warranty. If warranty in whole or in part may not be lent, exceptionally the judge may agree the suspension with total or partial waiver of guarantees if it detects that the execution could cause irreparable damage or very difficult to repair.

5. in proceedings for the offence referred to in this article, for the execution of the penalty of fine and civil responsibility, judges and courts will seek the help of the services of the Social Security Administration that require them for the administrative enforcement proceedings.

6 will be applicable to the regulated cases in this article the provisions of paragraph 5 of article 307 of the criminal code.»

8. Article 308 is drawn up in the following way: «1. that get grants or aid from public administrations in a number or a value exceeding one hundred twenty thousand EUR faking the conditions required for granting or hiding that had prevented it will be punished with the penalty of imprisonment from one to five years and a fine of the both the manometer of the amount unless you carry out reinstatement that referred to» 5 of this article.

2. the same penalties shall be imposed which, in the development of a funded activity total or partially funded by public authorities apply them in an amount greater than one hundred and twenty thousand euros to purposes other than those for which the grant or assistance was granted unless you perform the refund referred to in paragraph 5 of this article.

3. in addition to the above-mentioned penalties, will be imposed to the person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy tax incentives or benefits or Social security during a period of three to six years.

4. for the determination of the amount of disappointed it will be the calendar year and must be dealt with subsidies or aid obtained for the promotion of the same eligible private activity, although they come from different administrations or public entities.

5 means made the reinstatement he referred to in paragraphs 1 and 2 when the beneficiary of the grant or assistance appropriate to return subsidies or aid wrongly received or applied, increased in the interest on arrears applicable subsidy from the moment in which perceived them, and carry out until has been advised of the initiation of proceedings of verification or control in relation to such subsidies or grants or, in the case that such actions have not have occurred, until the public prosecutor, the State Attorney or the representative of the regional or local administration concerned, brought lawsuit or complaint against him directed or before the public prosecutor or the judge of instruction carry out actions that allow you to have formal knowledge of the initiation of proceedings. The reinstatement will prevent that said subject him pursued by the possible instrumental falsehoods which, exclusively in relation to the debt subject to regularization, the same could have committed prior to the regularization of their status.

6. the existence of criminal proceedings for any of the offences in paragraphs 1 and 2 of this article, shall not prevent the competent administration to demand reinstatement by administrative of subsidies or aid unduly applied. The amount that should be refunded shall be provisionally fixed by the Administration, and will then adjust to what is finally resolved in the criminal process.

Criminal procedure does not stop the action for recovery of the Administration, which may initiate action aimed at the collection unless the judge, ex officio or upon request, any agreed suspension of delivery execution performances warranty. If warranty in whole or in part may not be lent, exceptionally the judge may agree the suspension with total or partial waiver of guarantees if it detects that the execution could cause irreparable damage or very difficult to repair.

7. judges and courts may impose this crime responsible for the punishable in one or two degrees, provided that, until two months have elapsed since the subpoena as imputed, carry out the refund to that referred to in paragraph 5 and legally recognize the facts. This will be equally applicable to other participants in the crime other than the obligor to the reinstatement or the perpetrator of the crime, when they actively collaborate to obtain decisive evidence for identification or capture of other responsible, for full clarification of criminal acts or the ascertainment of the patrimony of the obligor or the person responsible for the crime."

9. Article 310 bis is drawn up in the following way: «(Cuando de acuerdo con lo establecido en el artículo 31 bis una persona jurídica sea responsable de los delitos recogidos en este Título, se le impondrán las siguientes penas: a) fine of both to double the amount defrauded or unduly obtained, if the crime committed by the individual plans to a term of imprisonment of more than two years.»

(b) a fine of twice the quadruple the amount defrauded or unduly obtained, if the crime committed by the individual plans to a term of imprisonment of more than five years.

(c) a fine of six months to one year, in the cases listed in article 310.

In addition to the above, will be imposed to the legal person responsible for the loss of the possibility of obtaining subsidies or State aid and the right to enjoy the benefits or tax or Social security during the period of three to six years. You can impose the ban to contract with public administrations.

«((((Atendidas las reglas establecidas en el artículo 66 bis, los Jueces y Tribunales podrán asimismo imponer las penas recogidas en las letras b), c), d), e) and g) of paragraph 7 of article 33.»

10. Article 311 is drawn up in the following way: «will be punished with the penalties of imprisonment from six months to six years and a fine of six to twelve months: 1 those who, through deception or abuse of position of need, imposed on workers at your service work or conditions of Social security that may harm, remove or restrict the rights that are recognized by legal provisions» collective agreements or individual contracts.

(2nd that give occupation simultaneously to a plurality of workers communicate their high in the regime of Social Security concerned or, where appropriate, without having obtained the corresponding authorization of work, provided that the number of workers affected is at least of: to) twenty-five per cent, in enterprises or workplaces that occupy more than one hundred workers ,


b) fifty percent, in enterprises or workplaces that occupy more than ten workers and not more than one hundred, or c) all of them, in enterprises or workplaces that occupy more than five and not more than ten workers.

3rd that in the event of transfers of undertakings, with knowledge of the procedures described in the preceding paragraphs, keep the referred conditions imposed on the other.

4th if the behaviors outlined in the preceding paragraphs is carried out with violence or intimidation will be imposed higher degree sentences.»

Eleven. Article 398 is drawn up in the following way: «the authority or public official who librare false certification with little significance in the legal traffic shall be punished with the penalty of suspension of six months to two years.

This provision shall not apply to certificates relating to Social Security and public finances. "

12. Added the article 433 bis, which is drawn up in the following way: «1. the authority or public official who, properly to cause economic damage to the public entity of which depend on, and outside the cases referred to in article 390, distort their accounting, the documents that need to reflect their economic situation or the information contained therein» shall be punished with the penalty of disqualification for employment or public office for one to ten years and a fine of twelve to twenty-four months.

2. with the same penalties it will punish the authority or public official, provided properly to cause economic damage to the public entity which depends, to a third party mendacious information relating to the economic situation of the same or any of the documents or information referred to in the preceding paragraph.

«3 if it changes to cause economic harm to the entity, the prison terms of one to four years, will be imposed special disqualification for employment or public office by three to ten years and a fine of twelve to twenty-four months.»

Sole additional provision. Effects of special tax return.

Shall be declared within the period established in the regulations of each tax with respect to each tax period which he must be charged, pensions initially unreported regularized through the special tax declaration provided in the first additional provision of the Royal Decree-Law 12/2012, of March 30, which introduces different tax and administrative measures aimed at reducing the public deficit.

Sole repeal provision.

1. articles 309, 627 and 628 of the organic law 10/1995 of 23 November, of the Penal Code shall be repealed.

2. they are hereby repealed many provisions is contrary to provisions of this organic law.

First final provision. Adequacy of the causes of ineligibility the causes of ineligibility contained in article 6 of the organic law 5/1985, of 19 June, of the General Electoral regime will be adapted, by timely legislative amendment, to those derived from offences which, in governance, including, where appropriate, in rules of legal rank.

Second final provision. Entry into force.

The present law shall enter into force on the twentieth day of its full publication in the «official bulletin of the State.»

Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this organic law.

Madrid, 27 December 2012.

JUAN CARLOS R the President of Government MARIANO RAJOY BREY

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