Changes to the law imposenew obligations upon those that develop commercial activities or repair new or used goods.
• Amendments incorporated by the so-called anti-crime “short agenda” Law.
One of the changes of Law Nº 20,931 was the incorporation of the crime of receipt of stolen property contemplated in Article 456 bis A of the Chilean Criminal Code, as a new crime to be covered by Law Nº 20,393 and, in turn, established that this crime will carry the penalties to be imposed upon legal persons, as established by Law Nº 20,393 for simple crimes:
a) prohibition against entering into acts and contracts with State organs;
b) loss of State benefits or absolute prohibition against receiving the same for 2-3 years;
c) fines of up to 20,000 Monthly Taxable Units (UTM), adding to any of the aforementioned penalties, the application of the complementary penalties mentioned in Article 13 of the Law.
The new text of Law 20,393 contemplates a very severe regulation in the case of repetition: the Court may impose the penalty of dissolution or cancellation of the legal personality, regulated in Article 9 of Law 20,393. In order for the Court to use this faculty, it is necessary that the legal person has been condemned within the 5 previous years for the same crime.
In accordance with the incorporated amendments and directly linked to the crime of receipt of stolen property, Article 13 of the anti-crime “short agenda” Law contemplates a series of specific obligations, both for individuals and legal persons that develop commercial activities or repair new or used goods. Among them is the obligation to carry a documented registry and information regarding the acquisition and source of the goods in order to evidence their ownership, possession or legal tenancy. In addition, those who administrate or hold in their custody goods in premises destined to warehousing or storage must fulfill this obligation. On the other hand, when dealing with used goods, there is an obligation to carry a book of source origin in line with requirements established in the Law and other formalities established in the respective regulation.
In addition to these new obligations, the Law incorporates the function of supervision of the fulfillment of these obligations by police staff. Said police staff are authorized to examine said registries and request the referred documents and even notify the Prosecutor if the individual or legal person under supervision refuses to cooperate or breaches these obligations.
• Impacts of the amendments on crime prevention models
It is obvious that those who carry out acts of commerce and/or repair moveable goods should amend their crime prevention models to adapt them to the new requirements that have been imposed. Firstly, because of the increased risk of commission of crimes within the company, increase that is not only due to the incorporation of a new base crime, but also because the commission of this type of crime is more likely to detect following the requirement of increased obligations or due diligence on the supervised entity, as has occurred. In this sense, the structure of the crime prevention model should be adapted and, in accordance with the basic requirements established by Article 4º of Law 20,393, it should grant increased measures and faculties to the person responsible for prevention, who shall have the duty to correct, monitor, detect and prevent the receipt of stolen goods.
In this sense, it would be recommendable to update the labor and legal instruments, as well as the roles and functions of the crime prevention officer. On the other hand, companies that already have a crime prevention model should evaluate whether it remains effective and valid with the incorporation of the referred crime, or whether new policies and prevention procedures should be established to complement the existing model, and personnel of the company should be trained considering the analysis of the new crime that is incorporated, giving examples of situations of risk of commission of the same and explaining the forms of prevention.
On the other hand, the fulfillment of the new obligations imposed by Article 13 of the anti-crime “short agenda” law should be supervised, in the cases of the companies referred therein.
In connection to the above, it is necessary to establish good complaints practices for the identification of this crime, which guarantee the anonymity of the complainant and allow for an independent and confidential analysis of the alleged facts.
Complete text of Law N° 20,393.
Complete text of Law N° 20,931.