The criminal liability of company directors

Published on June 24th, 2026

Running a company means taking decisions that carry risk, and almost all of them stay where they belong, in the realm of management rather than criminal law, though a small number do not and it is worth knowing where the difference lies before anybody needs it.

Anyone who has dealt with directors' duties elsewhere will recognize two of the labels below, breach of fiduciary duty and business judgment. In Spain the first of them is an offense in the Criminal Code rather than a civil claim, which changes what is at stake and who is asking the questions.

The Code sets out several offenses that bear directly on directors, whether de facto or de jure. They are worth knowing both to defend against a charge and to manage the risk from the moment decisions are taken.

The offenses that come up

The one a foreign director meets first is breach of fiduciary duty (article 252 of the Criminal Code), committed by a director who, exceeding their powers, causes harm to the assets they manage. Next to it sits misappropriation (article 253), which means taking as one's own the money or property received with an obligation to deliver or return it, and a group of corporate offenses (articles 290 and following) covering falsified accounts, harmful resolutions imposed or exploited, and obstruction of shareholders' rights. Fraud, document forgery and offenses against the Public Treasury often appear around them.

Where the line sits

Criminal liability almost never turns on the venture having gone badly but on the conduct, on whether there was an excess of powers, disloyalty, or a benefit obtained at the expense of someone else's assets.

The protection of business judgment (article 226 of the Spanish Companies Act) leaves a margin around that. A decision taken on an informed basis, in good faith, with no personal interest and through a proper procedure does not become a crime simply because it ends in losses.

A loan and a bad investment

Take a synthetic case in which a company director grants a loan of the company's money to another firm in their circle, on terms they would not accept with a third party and without putting it to the board. If that transaction harms the company's assets, it may amount to the breach of fiduciary duty of article 252, since there were powers of administration and they were used against the company's interest.

Now the same director approves a risky investment that ultimately goes wrong, but does it with sufficient information, in good faith and with no personal interest. A bad outcome on its own is not a crime, so that case is protected by the business judgment rule, and what separates the two is how the decision was taken, whatever the losses.

How I approach it

As these matters are won or lost in the detail, I delimit the facts precisely, check which wording of the provision was in force when they occurred, and work through the documentary evidence in depth: minutes, accounts, correspondence. I defend both the director under investigation and the company or shareholders harmed by the conduct.

If you have a case like this on your hands, I ask whether the transaction went through the board, which is usually where the line starts to show. Write to me to have it assessed, or read first how I handle criminal law and business matters. This subject often arrives together with business distress and insolvency. If it all started with a shareholder dispute, the guide on shareholder disputes and director liability explains how the civil and criminal routes combine, and if criminal proceedings are already under way in Barcelona, this is how I work as an English-speaking criminal lawyer.

Editorial responsibility: Carles Jiménez, Spanish lawyer (Barcelona Bar No. 34.946). This note was prepared with the assistance of artificial-intelligence tools and reviewed and approved by the author before publication.

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