Disloyal administration is the offence most readily born of a corporate dispute. A shareholder who distrusts how the company is run, a transaction one director authorises and another considers ruinous, an investment decision that goes wrong: any of these can end in a criminal complaint. For the international entrepreneur or executive with a company in Spain, the risk is twofold, because to the complexity of the offence is added distance and, at times, distrust between shareholders of different countries. We defend directors and companies against these accusations, and also the shareholders who have suffered genuinely disloyal management.
What Article 252 punishes
After the Organic Law 1/2015 reform, Article 252 of the Criminal Code punishes anyone who, having powers to administer another’s assets — arising from law, authority or a legal transaction — breaches them by exceeding their exercise and thereby causes loss to the administered estate. The core is the abuse of management powers, not the appropriation of specific assets. That is what separates it from misappropriation under Article 253, where there is a definitive transfer into one’s own estate. The Supreme Court distinguishes the intensive excess, administering harmfully, from the extensive excess, disposing as if one were the owner.
The line with the legitimate business decision
Not every management decision that produces losses is a crime. The law recognises a margin of discretion for the director — the business judgment rule — that protects decisions taken in good faith, sufficiently informed and within the proper scope of management, even if they later prove unfortunate. Disloyal administration requires intent: awareness of breaching the duties and of causing loss. Drawing that line between the bad decision and the wilful abuse is, in most cases, the centre of the defence.
Penalties, amount and limitation: what decides the real risk
Article 252 refers to the penalties for fraud, so the band depends on the amount of the loss. The basic offence carries six months to three years; if the loss exceeds €50,000 or the circumstances of Article 250 apply, the penalty rises to one to six years; and where it exceeds €250,000 it can reach four to eight years. To the prison term are added the fine, disqualification from administering others’ assets, and civil liability. Limitation is governed by Article 131: five years for the basic offence and ten for the aggravated ones, counted from the last act where the conduct comprises several operations with a single purpose. In practice, the accounting expert evidence that sets or disputes the amount of the loss is the real battleground, and it is built from day one, not on the eve of trial.
It is also worth recalling that the offence can be charged not only to the formally appointed director, but to the de facto director: the person who actually manages the assets even if not listed in the Commercial Register. The Supreme Court extends Article 252 liability to this figure, which widens the circle of potential suspects in complex corporate structures.
Common mistakes
The costliest mistake is facing a disloyal-administration complaint as if it were just another commercial lawsuit, without specialised criminal defence, letting the investigation fix a version of the facts hard to reverse. It also hurts to confuse disloyal administration with misappropriation in the defence brief, when the correct classification can change the penalty. And for the shareholder who feels wronged, waiting too long to act lets the assets be reorganised and the trail of the loss disappear.
Frequently asked questions
What exactly is disloyal administration, and how does it differ from misappropriation?
Disloyal administration under Article 252 of the Spanish Criminal Code punishes anyone who, having powers to administer another’s assets, breaches them by exceeding their exercise and thereby causes loss to the administered estate. The difference from misappropriation (Article 253) lies in what happens to the assets: in disloyal administration there is a harmful abuse of management but no definitive loss or transfer into one’s own estate; where that definitive appropriation exists, the offence becomes misappropriation. The Supreme Court separates the intensive excess — administering badly — from the extensive excess — disposing as if one were the owner — and that line decides the offence and the penalty.
I am a director and made a decision that went wrong. Is that a crime?
No, and it is a crucial distinction. Disloyal administration does not punish the bad business decision or the risk that turns out badly, but the breach of management duties causing loss to the administered estate. The business judgment rule protects decisions taken in good faith, informed and within the director’s scope of discretion, even if they later produce losses. The defence is built precisely there: showing that the decision, however unfortunate, was legitimate management and not a wilful abuse of powers.
What is the penalty for disloyal administration, and when is it aggravated?
Article 252 refers to the penalties for fraud: six months to three years for the basic offence, rising to one to six years where the loss exceeds €50,000 or the circumstances of Article 250 apply (it affects essential goods, or is especially serious by value or by the scale of the loss). To the prison sentence is added civil liability to repair the loss caused to the estate. The amount of the loss is, in practice, what most shapes the sentencing band in these corporate cases.
Can the company be charged as well as the director?
Yes. Article 31 bis allows criminal liability to be imposed on the legal entity alongside the director where the offence is committed in its name and for its benefit. That said, recent Supreme Court case law has reinforced that proving the director’s offence is not enough to convict the company: a defect of organisation specific to the entity must be established. An effective compliance programme can exclude or mitigate that liability, and its assessment is one of the most technical areas of corporate defence.
When does a dispute between shareholders over running the company cross into criminal law?
It is a delicate line that arises often in the international corridor, when a foreign shareholder distrusts the local management. Not every corporate dispute is disloyal administration: disagreement over strategy, dividends or the direction of the business is a commercial matter, not a criminal one. The offence requires a wilful breach of administration duties with real, quantifiable loss. In the cases I run between shareholders of different countries, the first task is to separate the legitimate commercial dispute from genuine abuse of management, because many complaints are filed as leverage in a corporate negotiation.
Recent trends in the courts
The Supreme Court has consolidated the homogeneity between disloyal administration and misappropriation, with a procedural consequence relevant to the defence. In judgment 10/2024 of 11 January (rapporteur Marchena Gómez), it recalled that, after the 2015 reform, a charge for one of these offences can end in conviction for the other without breaching the right of defence, given the substantial identity of the patrimonial wrong. For the person defending, this neutralises the strategy of seeking acquittal on a mere classification defect and shifts the debate to the essential: whether there was a wilful breach of administration duties and whether the loss to the estate was truly established.
Let’s discuss your case, in confidence
If you are a director facing a disloyal-administration complaint, or a shareholder who believes the management of your company is causing you loss, a technical assessment is worth having before any step. We review your situation with the confidentiality these matters demand and explain the strategy that fits, in defence or in prosecution. You can reach us by WhatsApp, phone or email for a first, confidential assessment.
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