Financial crime in Argentina: Overview
PRACTICAL LAW – Article by Manuel Beccar Varela.
A Q&A guide to corporate crime, fraud and investigations in Argentina. The Q&A gives a high level overview of matters relating to corporate fraud, bribery and corruption, insider dealing and market abuse, money laundering and terrorist financing, financial record keeping, due diligence, corporate liability, immunity and leniency, and whistleblowing.
Fraud
Regulatory provisions and authorities.
1. What are the main regulatory provisions and legislation relevant to corporate fraud?
Criminal provisions
The main law governing and punishing perpetrators of crimes related to corporate fraud is the Criminal Code of Argentina (Criminal Code), which applies to the whole country. The Criminal Code sets out the various crimes which carry considerable penalties for those who violate its provisions.
Over the past three decades, various additional laws have also been enacted due to the emergence of “white collar” crimes and commitments assumed by Argentina under several international treaties.
Civil liability
Corporate or business fraud can also give rise to civil liability. Civil liability (unlike criminal liability) requires damage to a certain person to occur, and only that person (or their agent or successor) can bring a claim. Mere attempts are not punishable.
Liability in this area can arise under tort, through the fundamental principle of alterum non laedere (not to injure other) which precludes individuals from causing harm to others. This principle is set out in section 19 of the Constitution and is expressly codified in sections 1749 to 1759 of the Civil and Commercial Code (among others).
For corporate or business fraud to give rise to civil liability, all of the following elements must be present:
*A breach of either a legal or contractual obligation, constituting an illicit act.
*The existence of actual damage.
*A sufficient causal relationship between the illicit act and the damage.
*Negligence or wilful misconduct from the damaging party.
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