Los delitos económicos, conocidos como los “de cuello y corbata” son perseguidos desde que entró la ley que los regula en agosto pasado. El desafío es ahora cuando esta legislación produzca un cambio de conducta en las empresas y organizaciones estatales, aleje el peligro de «captura del regulador por el regulado» y cambie con el tiempo la percepción pública de impunidad de este tipo de ilícitos.
Por Gonzalo Martner
La sociedad chilena se vio sacudida en 2019 por el rechazo generalizado a lo que se denominó «abusos» desde el mundo empresarial privado y a la corrupción de funcionarios y actores públicos por agentes privados. La respuesta legislativa, de perfil relativamente bajo, pero no por eso menos importante, fue la de delinear un nuevo conjunto de «delitos económicos», lo que terminó en una ley promulgada en agosto de 2023, cuya persecución pondrá a prueba al sistema de regulación y la capacidad sancionatoria del Poder Judicial en defensa de la ciudadanía común y corriente.
La ley establece cuatro categorías de delitos económicos. En primer lugar, agrupa a los que inciden en la regulación de los mercados, como la colusión, la negociación incompatible, falsear u ocultar información solicitada por la Fiscalía Nacional Económica y la corrupción entre privados. Dicho sea de paso, permanece la lentitud de este organismo frente a la presunción visible de inflación por aumento de márgenes en variados mercados, lo que solo es posible en situaciones de falta de competencia. Queda mucho margen para aumentar su diligencia.
En segundo lugar, se agrupan los delitos contra la propiedad intelectual, la propiedad industrial, los delitos informáticos y el contrabando.
En tercer lugar, se agrega lo que habrá de determinar mayores cambios en la regulación interna de las empresas, la categoría de los «delitos funcionarios», que abarca a los que son cometidos con la participación de un miembro de una empresa o en favor de ésta, como el delito de cohecho a funcionario público o la falsificación o utilización maliciosa de certificados de la Superintendencia del Medio Ambiente, entre otros de esta índole.
La cuarta categoría la constituyen los delitos de receptación, blanqueo y lavado de activos, conectados con la economía ilegal.
Además de las penas de presidio o reclusión previstas en cada ley, la innovación es que se establece que todo delito económico conlleva una pena de multa con un nuevo sistema de «días-multa». Este se vincula «a la extensión de las penas privativas o restrictivas de libertad» y al ingreso promedio diario del condenado. La multa podrá llegar a una cifra máxima teórica de 300.000 UTM (del orden de $19 mil millones) para una persona natural, sin considerar el delito propio que cometa la empresa como persona jurídica. A su vez, se establece como circunstancia agravante de un delito económico si «el condenado participó activamente en una posición intermedia en la organización en la que se perpetró el delito» y no solo si tenía una posición elevada en la jerarquía.
El desafío es ahora cuando esta legislación produzca un cambio de conducta en las empresas y organizaciones estatales, aleje el peligro de «captura del regulador por el regulado» y cambie con el tiempo la percepción pública de impunidad de los delitos de “cuello y corbata”.
306 comentarios en “Los desafíos de la nueva ley de delitos económicos”
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