Misappropriation (Art. 253 CP): Elements, Types and Criminal Defence in Spain (2026)

# Misappropriation of Funds (Art. 253 CP): Elements, Types and Criminal Defence (2026)

Misappropriation of funds (apropiación indebida) is one of the most frequently prosecuted economic offences in Spanish judicial practice. Following the reform introduced by Organic Law 1/2015 (LO 1/2015), the relationship between misappropriation of funds (art. 253 of the Código Penal: Criminal Code, hereinafter CP) and breach of fiduciary duty (administración desleal, art. 252 CP) was restructured, bringing greater clarity to the system.

1. Basic Offence (Art. 253 CP)

Constituent conduct: any person who, to the detriment of another, misappropriates, diverts, or denies having received money, effects, securities or any other movable property or patrimonial asset that they received on deposit, commission, or for safekeeping, or that was entrusted to them under any other legal title giving rise to an obligation to deliver or return it, or who denies having received such property; where the amount misappropriated exceeds 400 euros.

Constituent elements:

1. Lawful receipt: the person receives the asset under a legal title that does not transfer ownership (deposit, commission, mandate, lease, pledge, administration)
2. Act of misappropriation or diversion: incorporation of the asset into one's own estate or use with intent of permanent disposal
3. Patrimonial harm: the owner suffers an effective economic loss
4. *Criminal intent (dolo*): knowledge and will to misappropriate or divert another's property

Legal titles giving rise to misappropriation liability**:

• Deposit: delivery of an asset for safekeeping and return
• Commercial commission (comisión mercantil): management of business on behalf of another
• Civil mandate (mandato civil): representation or management of another's interests
• Lease: temporary use with an obligation to return
• Administration of third-party assets: asset management (guardians, property managers)

2. Modes of Commission

Direct misappropriation: incorporation of the asset into one's own estate. A depositary sells the deposited asset and retains the proceeds. This is the clearest form.

Diversion: use of the asset for a purpose other than that agreed. A commission agent uses money received for personal purposes instead of crediting it to the principal's account.

Refusal to return: where the person refuses to return the asset received, falsely claiming it has already been returned or that it belongs to them. This requires deliberate intent; a simple delay in returning the asset due to financial difficulties does not constitute the offence.

3. Distinction from Breach of Fiduciary Duty (Art. 252 CP)

Following LO 1/2015, the distinction is clear:

Misappropriation of funds (art. 253 CP): the person appropriates the asset for themselves or for a third party, incorporating it into their own estate. The asset is definitively removed from the owner's sphere.

Breach of fiduciary duty (administración desleal, art. 252 CP): the person causes harm to the administered estate without appropriating it. The manager makes decisions contrary to the principal's interests that cause patrimonial harm: ruinous investments, self-dealing transactions, dilution of capital.

STS (Supreme Court judgment) of 27 January 2020: breach of fiduciary duty does not require the manager to have been enriched; it is sufficient that the administered estate suffers harm.

4. Aggravated Forms (Art. 253.2 CP)

The penalty is imposed in its upper half where:

1. The amount misappropriated exceeds 50,000 euros
2. The misappropriated assets are essential goods, housing or other assets of recognised social utility
3. The facts are of particular gravity by reason of the value of the harm, the vulnerability of the victim, or an abuse of trust in the exercise of professional duties

5. Applicable Penalties

Basic offence (amount between €400 and €50,000): imprisonment of 6 months to 3 years. Where the amount does not exceed €400 → minor offence (delito leve, art. 234.2 CP post-2015).

Aggravated form: the basic penalty is imposed in its upper half (1 year and 6 months to 3 years).

Severely aggravated form (art. 253.2 in fine + art. 250 CP by analogy, per legal doctrine): where the circumstances of art. 250 are present (criminal organisation, particular gravity), the penalty may reach 6 years.

6. Statute of Limitations

The limitation period for misappropriation of funds in its basic form is 5 years (art. 131.1 CP, máximum penalty of 3 years = less serious offence category). In the aggravated form, 10 years.

**Dies a quo (start date): from the commission of the offence, not from the date the injured party became aware of it. In continuing misappropriations, from the last act of disposal.

STS of 3 December 2019: in the misappropriation of company funds by a director, the limitation period runs from each irregular act of disposal, not from the date of its accounting discovery.

7. Civil Liability

A conviction for misappropriation of funds entails civil liability** for:

• Restitution of the asset or its value at the time of trial
• Compensation for losses arising from deprivation of the asset
• Interest from the date of the misappropriation

Civil liability may be enforced against the convicted person and, in the case of legal entities, against the company under art. 116 CP.

8. Misappropriation in the Employment Context

Misappropriation of company funds by an employee is the most common scenario:

• Treasurers retaining customer payments
• Sales representatives keeping commissions received directly from clients
• Executives diverting payments to their own accounts

In such cases, the employer may simultaneously bring criminal proceedings and a civil action for contractual liability before the employment courts (jurisdicción laboral), including disciplinary dismissal.

9. Key Case Law

STS of 28 October 2016: the animus rem sibi habendi (intent to keep the asset for oneself) does not require actual enrichment; it is sufficient that the asset is temporarily incorporated into one's own sphere of control, even if part of it is subsequently returned.

STS of 15 January 2020: acting in excess of a mandate (beyond the scope of instructions) does not necessarily convert a contractual breach into misappropriation; a specific intent not to return the asset is required.

STS of 14 June 2022: in commercial commission, misappropriation of goods received for sale on behalf of the principal constitutes misappropriation of funds even where the commission agent claims outstanding debts remain to be settled.

10. Defence Strategy

Common lines of defence:

1. Absence of criminal intent: confusion between personal and third-party accounts, accounting error
2. Different legal title: the delivery was by way of loan or sale, not deposit
3. Right of retention for outstanding debts owed by the principal (art. 276 of the Código de Comercio: Commercial Code)
4. Set-off of mutual credits (where reciprocal obligations exist)
5. Statute of limitations

Key documentary evidence to gather: contracts defining the legal title of delivery, bank statements covering all transactions, communications between the parties, partial or final accounts rendered.

Lexiel identifies Tribunal Supremo (Supreme Court) case law on misappropriation of funds in situations equivalent to the client's (director, employee, commission agent), analyses the subjective element of criminal intent, and drafts the defence brief or criminal complaint.