CRIMINAL LAW DIVISION
Recent case law of the Spanish Supreme Court has once again addressed a recurring yet still unsettled issue: the interaction between the absolutory cause based on kinship under Article 268 of the Criminal Code and the restriction on procedural standing set out in Article 103 of the Criminal Procedure Act, particularly when criminal disputes arise within the context of family businesses.
From a statutory perspective, Article 268 of the Criminal Code establishes an absolutory cause applicable to certain property-related offences committed between close relatives, provided that no violence, intimidation, or abuse of superiority is involved. Its effect is not the disappearance of the offence itself, but rather the exclusion of criminal punishment, while civil liability is expressly preserved.
Article 103 of the Criminal Procedure Act, by contrast, operates on a different level: it limits the exercise of criminal proceedings between certain family members, configuring a restriction on procedural standing, provided that the offences do not involve crimes committed by one against the person of another or, in the case of spouses, the offence of bigamy.
Both provisions respond to different rationales and operate on distinct planes—procedural in one case, substantive in the other—without any automatic overlap between them. However, judicial practice shows that this distinction is not always applied with clarity, giving rise to interpretative friction. This tension is further intensified in the context of family-owned companies, where the question also arises as to whether
either provision can apply despite the formal presence of a legal person with full legal capacity, separate existence, and autonomy.
The recent judgment of the Second Chamber of the Supreme Court (STS 890/2025, of 8 October) is paradigmatic in this respect. The case concerned a public limited company made up of siblings that brought a private prosecution against another sibling for offences of disloyal administration, misappropriation, and forgery. The Provincial Court ordered a dismissal with prejudice, holding that the company lacked active standing under Article 103.2 of the Criminal Procedure Act and that, following the withdrawal of the remaining accusations, the proceedings could not continue. It also added that the potential application of the absolutory cause under Article 268 of the Criminal Code could not be examined at the intermediate stage. This decision was upheld by the High Court of Justice and subsequently appealed to the Supreme Court.
The Supreme Court took the opportunity to review the various lines of case law concerning the application of Article 268 of the Criminal Code in the context of family businesses. As a general rule, it recalled that a commercial company is a subject endowed with its own legal personality, which hinders the automatic application of an exemption based on kinship ties between natural persons. Nevertheless, it reiterated that, in certain cases, courts have pierced the corporate veil to apply the absolutory cause through an extensive and defendant-favourable interpretation, where the company constitutes a purely family or patrimonial structure and there is a complete identification between the company’s interests and
those of the family shareholders.
However, in the specific case at hand, the Supreme Court rejected the application of Article 268 of the Criminal Code because not all the offences charged were strictly patrimonial in nature, as they included corporate offences such as document forgery or the imposition of harmful resolutions. It nevertheless avoided a definitive ruling on the applicability of Article 103 of the Criminal Procedure Act to family companies, resolving the appeal on narrower grounds.
The judgment includes a dissenting opinion by Justice Hernández García, which is particularly relevant from a doctrinal perspective. In his view, the Chamber should have focused exclusively on the issue of procedural standing, without conflating it with the absolutory cause under Article 268 of the Criminal Code. From this standpoint, where a company is made up exclusively of family members and its corporate and family realities are difficult to disentangle, the corporate veil should be pierced and the restriction on standing under Article 103.2 of the Criminal Procedure Act applied. He even accepts that, in such a context, the absolutory cause could also have been applied.
The issue of enforcing civil liability adds a further layer of procedural complexity. Supreme Court case law has maintained a heterogeneous doctrine, which Judgment STS 94/2023, of 14 February, synthesises with precision. As a general rule (although there is also disagreement on this point), when the absolutory cause under Article 268 of the Criminal Code is clearly established at the investigative or intermediate stage, a dismissal with prejudice is appropriate under Article 637.3 of the Criminal Procedure Act, without any ruling on civil liability, leaving the civil courts open.
Conversely, when the absolutory cause is assessed at judgment stage, after evidence has been taken and the facts and damage have been sufficiently established, it is accepted that the criminal court may declare civil liability together with the criminal acquittal. This solution is based on three fundamental ideas: first, that the absolutory cause does not eliminate the typicity, unlawfulness, or culpability of the act (it should
be recalled that a crime is defined as a typically unlawful and culpable act subject to an appropriate criminal sanction); second, that Article 268 of the Criminal Code expressly maintains the civil liability of the exempted party; and third, that considerations of procedural economy favour resolving the civil issue within the criminal proceedings, provided that the action has not been waived or reserved.
This, broadly speaking, is the current state of the matter: the coexistence of interpretative lines, the absence of a unified criterion, and a wide argumentative margin for legal practice. While this may be useful from a strategic perspective, it raises significant questions regarding systemic coherence and legal certainty, as guaranteed by Article 9.3 of the Spanish Constitution. If the legal system admits the criminal liability of legal persons, it does so on the premise that they are genuinely separate entities, endowed with their own will and existence. The extensive application of analogies in bonam partem in this area may generate significant comparative grievances and place family members who are victims of property
offences at a clear disadvantage.
Furthermore, if the rationale of Article 268 of the Criminal Code is the protection of family harmony, it is ultimately worth asking whether this logic remains applicable when there is formal kinship but no genuine family relationship or family peace to preserve, because relations have irretrievably broken down.
