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is committed the crime of misappropriation at the moment in which a person takes possession of some property for his own benefit, when it has been entrusted with the obligation to return it. This offense can be found in the Penal Code and the penalties established in this may vary according to the value of the assets and the seriousness of the case.
What exactly is the crime of misappropriation?
As mentioned above, the crime of misappropriation It is nothing more than a fraud that has the purpose of harming the person who transferred the assets in the form of deposit or custody, illegitimately appropriating their money, effects, securities or other personal property that was delivered with the obligation to be returned to its owner.
Misappropriation can be differentiated from robbery crime, he crime of theft and that of fraud due to the way in which the author seizes the property of others. Initially, the author has full legitimate possession of the assets, being their administrator or custodian, and then proceeds to retain them illegally, taking advantage of the situation.
What are the necessary elements for this crime to exist?
- There must be the illegitimate appropriation of some material good.
- The subject who commits the crime must have a legitimate appropriation that will become illegitimate. In other words, a mutual agreement must have been made between both parties, where some asset was temporarily transferred to the author with the condition and obligation to return it to its owner.
- The author must be in a position where he completely refuses to deliver the goods that were temporarily delivered to him or, failing that, he claims that he never received them.
- There must be a patrimonial damage, where the subject who commits the crime enjoys great wealth, while the victim lacks economic stability as a result of the fact.
- There must be a profit motive. The person who commits the crime must have the intention of benefiting from the facts and the damage caused, obtaining advantages and violating the property rights of the victim.
What are the penalties established for the crime of misappropriation?
The penalties established by the crime of misappropriation they vary according to the value of the goods, the seriousness of the case and the way in which the appropriation has been carried out.
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If the value of the appropriated assets is less than 400 euros, it is considered a minor offense and a fine of 1 to 3 months will be established. However, the criminal record for this crime will remain valid for up to six months after paying the entire fine imposed.
Otherwise, if the value of the appropriated assets exceeds 400 euros, the established penalty may vary between 3 and 6 months of fine. Likewise, if the goods have a cultural, artistic and historical value, a prison sentence will be established that can vary between 6 months and 2 years.
When is a crime of misappropriation considered serious and what is the established penalty?
The crime of misappropriation may also have some peculiarities that are considered serious, which marks the difference between the basic modality. For this reason, the established penalty is greater, that is, between 1 and 6 years in prison plus a fine that can vary between 6 and 12 months. It is considered an aggravated modality when:
- The crime falls on basic necessities or homes
- The crime falls on assets that are part of the artistic, cultural and historical heritage
- The execution of the crime has left great economic damage to the victim or his family
- The value of the appropriated assets exceeds the amount of 50,000 euros.
- The crime is carried out abusing the personal relationships that may exist between the victim and the appropriator or taking advantage of their professional credibility
What are the requirements that the victim must have to prosecute the crime of misappropriation?
In the criminal code there are different requirements that the affected person must have, this in order to demonstrate that there was no theft and that the goods were transferred on condition that they be returned to their owner in an agreed time.
For this reason, the affected person must have some type of certificate, either a title or a document indicating that they are the owner of the goods that were temporarily assigned and that they were not sold or given away, since these may be the reasons that the author alleges when explaining the facts.
It is also important and of great relevance that the obligation of the other party to return the goods to their owner within the established time is explicitly indicated in the document or agreement made.
What is the statute of limitations for this offence?
Article 131 of the penal code establishes that this crime prescribes:
- At twenty years, when the sentence is fifteen years or more
- At fifteen years, when the penalty is disqualification or imprisonment for more than ten years
- At ten years, when the penalty is disqualification or imprisonment for more than five years and does not exceed ten.
Crime of misappropriation of inheritance
The crime of misappropriation can also occur at the time of obtaining or claiming an inheritance.
This crime occurs when the heirs make the decision to omit or hide some of the assets that are included in it, in order to obtain benefits without having to make any distribution among the other members.
Before the courts, this crime is classified as a crime of illegal appropriation, for which reason one of the aforementioned penalties will be imposed depending on the seriousness of the facts. However, if the person who commits the crime assigns the assets or sells them to a third party, the crime will be considered fraud.
