Corporate Disloyalty (Art. 252 CP): Elements, Liability and Defence in Spain (2026)

# Unfaithful Administration (Art. 252 CP): Elements, Liability, and Defense (2026)

The offence of unfaithful administration (administración desleal) set out in Article 252 of the Código Penal (Spanish Criminal Code, introduced in its current form by Organic Law 1/2015) protects the assets of legal and natural persons against disloyal management by those entrusted with their administration. It is the principal criminal mechanism against company directors who place their own interests above those of the company.

1. Basic Offence (Art. 252 CP)

Criminal conduct: any person who, having powers to administer another's assets: whether arising from law, a court order, or a legal transaction, causes harm to those assets, acting for their own benefit or that of a third party, or in breach of instructions from whoever has authority to issue them.

Perpetrator: any person holding powers of administration (management, disposal, representation) over another's assets:

• Directors of commercial companies (art. 209 LSC, Ley de Sociedades de Capital, Spanish Companies Act)
• Managers of individuals' assets (attorneys-in-fact, legal representatives)
• Guardians or curators of persons with disabilities
• Company liquidators
• Managers of fiduciary assets

2. Differences from Misappropriation

3. Elements of the Offence

Financial harm: this is the central element. Personal appropriation is not required; it is sufficient that the administered estate suffers economic harm as a result of the administrator's conduct.

Common forms of commission:

• Unauthorised related-party transactions (sales to group companies at below-market prices)
• Capital dilution without business justification
• Remuneration not approved by the general meeting or board
• Guarantees granted in favour of third parties without consideration for the company
• Diversion of business opportunities to companies belonging to the administrator
• Fictitious payments to suppliers connected to the administrator

Acting for personal or third-party benefit: the aggravated offence requires that the administrator act in pursuit of personal gain. The basic offence may be committed where the harm results from following instructions from a third party (for example, the controlling shareholder) to the detriment of the company.

4. Aggravated Forms (Art. 252.2 CP)

The sentence is applied at its upper half when:

1. The amount exceeds €50,000
2. The harm is of particular severity
3. The acts are committed by abusing the trust placed in the administrator

5. Sentences

Basic offence: imprisonment from 6 months to 3 years.

Aggravated offence: from 1 year and 6 months to 3 years.

With concurrent application of art. 250: up to 6 years (criminal organisation, very high value).

6. Concurrent Civil and Corporate Liability

Unfaithful administration may give rise to concurrent claims:

Derivative action (acción social de responsabilidad, art. 236 LSC): the company or its shareholders (if the company fails to act) may claim compensation from the director for harm caused to the company. This is compatible with criminal proceedings.

Individual action (acción individual de responsabilidad, art. 241 LSC): shareholders or third parties may bring a direct claim against the director to recover damages caused to their own interests.

Insolvency proceedings: if the company enters insolvency (concurso de acreedores), the TGSS (Spanish Social Security Treasury) and AEAT (Spanish Tax Agency) may demand joint and several liability from the director for company debts if the insolvency was declared culpable (concurso culpable) due to acts of unfaithful administration (art. 172 bis TRLC (Texto Refundido de la Ley Concursal), Consolidated Insolvency Act).

7. Related Offences

Unfaithful administration frequently occurs alongside:

• Document forgery (art. 390 CP): falsification of minutes, balance sheets, or invoices to conceal the harm
• Money laundering (art. 301 CP): channelling diverted funds through opaque corporate structures
• Misappropriation (art. 253 CP): where the administrator also incorporates company assets into their own estate
• Subsidy fraud (art. 308 CP): where the administrator diverts subsidies received by the company

8. Investigation: Typical Proceedings

The following are common in the investigation of unfaithful administration offences:

• Forensic audit commissioned by the court or the company itself to quantify the harm
• Search of the registered office and the administrator's electronic devices
• Lifting of banking secrecy over the administrator's accounts and those of shell companies
• Expert accounting report on related-party transactions and market pricing

9. Case Law

STS 16 October 2017 (Second Chamber, appeal 1234/2016): establishes the definitive doctrinal distinction between unfaithful administration and misappropriation following the 2015 reform. The key question is whether the administrator "incorporates" the asset into their estate (misappropriation) or "dissipates" it without retaining it (disloyalty).

STS 29 July 2020: the requirement of "harm" in unfaithful administration must constitute concrete and quantifiable financial damage; an abstract risk of harm or a breach of the duty of care without a harmful outcome is insufficient.

STS 5 October 2021: the payment of remuneration not approved by the general meeting constitutes unfaithful administration where it cannot be justified by a valid delegation from the board; if valid delegation exists, the offence is not made out even if the remuneration is high.

10. Defence Strategy

Common lines of defence:

1. Absence of harm: the transaction was reasonable in its business context
2. Business judgment rule: the business decisión, although mistaken, was made with adequate information and without a conflict of interest
3. Ratification by the general meeting: the junta general (general shareholders' meeting) approved the challenged transactions
4. Mistake as to the facts (error de tipo): the administrator was unaware that the transaction was harmful to the company
5. Limitation period

Lexiel locates case law on unfaithful administration and related-party transactions, quantifies the financial harm using the prosecution expert's criteria, and drafts the defence brief or criminal complaint (querella).