Breach of Fiduciary Duty Criminal Defense | Legal Help

Have you been charged with a breach of fiduciary duty offense? Charges for breach of fiduciary duty can affect both your reputation and your professional future. The offense of breach of fiduciary duty is regulated in article 252 of the Spanish Criminal Code and punishes abuse or excess in the management of another person’s assets.

What is the offense of breach of fiduciary duty?

The offense of breach of fiduciary duty sanctions those persons who, having the authority to administer another person’s assets, act abusively or exceed such authority, causing economic harm to the owner of the assets. This offense can therefore occur through:

• Improper use of legitimate authority.
• Exceeding the scope of assigned functions.

Elements of the breach of fiduciary duty offense

1.- Existence of administrative authority over another person’s assets. The perpetrator must hold administrative authority over another person’s assets, granted by:

• Competent authority.
• Legal transaction (for example, a power of attorney).

This authority can derive from both a formal legal framework and a contractual or mandate relationship.

2.- Excess in the exercise of granted authority: The core of the criminal offense lies in the «excess», which can manifest

Differences with other property crimes

The differences between breach of fiduciary duty, fraud and embezzlement lie in the typical elements of each offense, such as the protected legal interest, the form of commission and the harm caused.

Fraud

The offense of fraud punishes whoever induces error in another person through prior deception to achieve a transfer of assets to the detriment of the victim. The elements of fraud are:

• Initial deception that induces the victim to perform an act of asset disposition.
• The victim voluntarily transfers the assets, but under a false premise.
• There exists intent to profit for the perpetrator.

Embezzlement

The offense of embezzlement sanctions those persons who appropriate movable property received in lawful possession and which they have an obligation to return. The elements of embezzlement are:

• The property is delivered lawfully to the accused (by deposit, administration, etc.).
• There exists an obligation of restitution or delivery, which is not fulfilled.
• It is consummated when the active subject definitively incorporates the property into their assets.

Now that you have a global view of each offense, the difference lies in the core element of each offense. While in the breach of fiduciary duty offense the core of the criminal conduct is the «excess