Within the framework of collaboration of training activities agreed between the State Attorney General's Office and the Tax Agency, on March 25, 2022, a joint conference was held under the title " Frustration of execution, articles 257 and following of the Penal Code" .

The session was held virtually and the speakers were Ms. María del Mar Sharfhausen Peláez, Prosecutor of the Economic Crimes Section of the Provincial Prosecutor's Office of Madrid, and Mr. Guillermo Barros Gallego, Director of the Collection Department of the Tax Agency.

The day began Ms. María del Mar Sharfhausen Peláez , focusing her intervention on the frustration of execution, such as those situations in which credit is attacked by insolvent debtors, due to their clumsiness or their bad behavior, and they decide not to resolve these problems in accordance with the principles of good faith. He therefore stressed the need to start from the principle of minimum intervention in criminal law, that is, action should only be taken in the event of the most serious attacks on the protected legal asset, the right to credit.

In this regard, Ms. María del Mar Sharfhausen explained that the right to credit is nothing more than the exchange of present wealth for future wealth in the confidence of returning it under the agreed conditions. In this sense, our wealth as individuals, groups, companies or even States is measured by our borrowing capacity. Credit is therefore a source of money creation, liquidity and monetary flow. Therefore, it is essential to protect the rights of creditors, since what is particular about these crimes is that the active subject is the one who harms his own assets to harm creditors who want to enforce their credit.

In order to analyse these crimes, he highlighted the reform introduced by Organic Law 1/2015, of March 30, by which punishable insolvencies were modified to separate, following the German model, the crimes of frustration of execution and punishable insolvency; The dividing line is, precisely, the insolvency of the debtor, either because it is current or imminent –in punishable insolvency–, or because it is a total or partial insolvency, real or fictitious, of all or part of the debtors with the intention of harming their creditors –in frustration of execution–.

For his part, Mr. Guillermo Barros Gallego highlighted that the current frustration of execution regulated in articles 257 and following of the Penal Code contemplates a complex evolution, from the lifting as a physical phenomenon in which a debtor took an asset away from the creditors, to the recent figures of falsehood in the manifestation of assets or the typical conducts foreseen for punishable insolvencies in the already complicated situations of bankruptcy.

He also stated that this complexity, seen in isolation, can evolve into greater difficulty when the commission dynamics include other facts or assessments on the concurrence of norms or the concurrence of crimes, issues of interest for an enriching debate, but difficult to resolve.

Mr. Guillermo Barros' intervention dealt with these issues from a practical point of view, focusing on specific factual assumptions, but always with the guidance of the Supreme Court's jurisprudence.

Following their presentations, a question and debate session was opened for the attendees.