Within the framework of collaboration of training activities agreed between the State Attorney General's Office and the Tax Agency, a joint conference took place on March 25, 2022 with the title " The frustration of execution, articles 257 and following of the Penal Code" .

The session was held virtually and Dª participated as speakers. 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 the credit is attacked by insolvent debtors, by their clumsiness or by their bad actions , and decide not to resolve these issues in accordance with good faith principles. For this reason, he highlighted the need to start from the principle of minimum intervention of Criminal Law, that is, action should only be taken in the face 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 of 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, as groups, companies or even as States is measured based on our debt 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 the creditors who want to make their credit effective.

To analyze these crimes, the reform introduced by Organic Law 1/2015, of March 30, stood out, by which punishable insolvencies were modified to split, 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 the frustration of execution–.

For his part, Mr. Guillermo Barros Gallego highlighted that the current frustration of the execution regulated in articles 257 and following of the Penal Code contemplates a complex evolution, from the uprising as a physical phenomenon in the that a debtor took property away from creditors, to the recent figures of falsehood in the manifestation of assets or the typical conduct provided 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 dynamic includes other facts or evaluations about the competition of norms or the competition of crimes, issues of interest for an enriching debate, but difficult to solve.

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

After their presentations, a session of questions and debate was opened for those attending.