Misappropriation lawyers Panama
Are you involved in the Crime of Misappropriation? Have you been a victim of Misappropriation?
At José María Castillo y Asociados, our Misappropriation Lawyers Panama advise and defend individuals, entrepreneurs, organizations, business conglomerates, financial institutions, state entities, within the framework of international law and Panamanian law. At José María Castillo y Asociados we frequently advise clients who find themselves in situations such as the following:
- The person (victim) who entrusted a work of art, heirloom, family jewel to another person (depositary) to take care of it until its return to the country. When the person (victim) returns to the country this another person (depositary) refuses to give the thing or even denies having received it.
- The depositary who receives the thing and gives it to a third party during the time of the deposit without having previously asked the owner’s authorization.
- The person who was entrusted with a rental car and instead of returning it during the rental period, appropriates the car and does not return it.
If you feel that you are in a situation like the examples of misappropriation mentioned above, either as a victim or being accused, remember that it is important that a lawyer specialized in the crime of misappropriation assists and defends you from the first moment . Our services can be given through preventive advice or representation in an extrajudicial declaration, administrative diligence or defense in criminal proceedings, according to your needs.
What is Misappropriation?
It is a crime against the economic patrimony that implies an abuse of trust and corresponds to that in which a person to the detriment of another owns money or any other movable thing that he had received in deposit, commission or administration or by another title that produces an obligation to return it or deliver it.
FRAUD is the fundamental basis of this crime since it is associated with deception or loss of confidence of the owner towards the depositary. i.e., what is important here is not the mere act of disposal of the thing towards the depositary but the FRAUD OF CONFIDENCE or the victim’s feeling of REGRET of having appointed the perpetrator of this crime and makes administrator of patrimony or depositary of a thing legitimately possessed.
The purpose is to protect the ownership of movable things and punishes that the person does not return the thing delivered causing damage to the other party.
Legal right protected in the crime of misappropriation
What is protected by criminalizing this crime is the right of ownership and the right of credit. i.e., the right of ownership is violated when the depositary refuses to return or deliver a thing obtained legally. What happens when what is disputed is the money? In this case, the right of ownership is not protected. If the victim gave money to the depositary, by the nature of the money, it is producing the legal effect of transferring the ownership of the money to the depositary.
However, here it is necessary to protect the right of credit when the victim gave money to the depositary to be returned or when the victim gave the money to the depositary for a specific purpose, which can be an investment, a fund, a purchase of securities, construction, business, etc. This type of crime, as we can see, does not have a minimum economic value, but it does have an aggravating circumstance when the value of the money exceeds one hundred thousand dollars (USD 100.000,00).
need a consultation?
The main rules governing the Crime of Misappropriation in Panama
Article 277 of Criminal Code of the Republic of Panama states that:
“Whoever appropriates for his own benefit or that of a third party a movable thing belonging to another or the proceeds thereof, if the thing has been entrusted or delivered by title transfer of ownership, shall be punished with imprisonment of one to three years of the equivalent in day fine by weekend arrest if the value of the appropriated thing is more than one hundred thousand balboas (B/. 100.000,00), the penalty shall be from four to eight years.”
1. Possession or Unlawful Acquisition.
The perpetrator must be in lawful possession of the titles of the movable things, money for investment, securities, belongings. It is necessary to separate this crime of misappropriation from the crimes of theft, robbery, swindle, since in the crime of misappropriation there is the will of the victim that another person legitimately obtains possession of the thing.
On the other hand, in the crime of fraud the acquisition of the thing by the author is the result of a criminal deceptive behavior that induced the error and generates a displacement of wealth therefore a possession or illegitimate acquisition. Finally, in theft and robbery cases the appropriation of thief is not the result of the trust of the victim.
In this criminal type of theft and robbery the conduct of theft of the thing is punished while in the type of unlawful appropriation there is no theft because the owner has the will to give the thing ; therefore, it cannot be equated to the crime of misappropriation.
2. Title that obliges to return or deliver the thing.
Must be the obligation of the possessor to return or deliver the things, this obligation must be proven by a title that does not authorize him to act as its owner but as its commissioned administrator or trustee.
3. Appropriating or denying having received the thing.
The conduct of denying having received the thing or appropriating the thing is what constitutes the definitive breach of the obligation to return or deliver the thing.
What is understood as “appropriating” the thing? Incorporating the thing that does not belong to us, into our patrimony or that of a third party. Acting as owner by consuming the thing, selling the thing, leasing the thing or even destroying it.
What is meant by “denial of having received” the thing? It is considered that the denial of having received the this goes to a presumption of “iuris et de iure” of the act of appropriation. The denial has the effect of not recognizing the right of ownership or right of credit to the victim thus configuring the crime with the manifest failure to deliver or return the thing.
4. Subjective type
Deceit: The perpetrator must have the intention of appropriating the thing, sometimes there is “preexisting deceit” which is when the perpetrator had the intention of appropriating the thing before it was legitimately received, so it could be discussed whether it is misappropriation or fraud.
Profit motive: The majority doctrine has the opinion that in order to configure the misappropriation there must be the own profit motive for a third party or at least and advantage in possessing the thing.
Intention to become owner: It must have the intention to become the owner. In cases of unfair administration and unfair management of a patrimony, is not necessary to incorporate the thing into the patrimony of the author. With the single act of “distraction” of the victim’s funds can be considered a case of misappropriation.
What is Misappropriation?
It is a crime that implies a breach of trust and is conceived when a person, to the detriment of another, appropriates money or any other movable thing that has received and has the obligation to deliver it or return it, according to the mandate.
What are the elements of misappropriation?
1. The acquisition or legitimate possession of the movable thing, the effects, securities, investment
2. That the initial requirement for the return of the thing to be delivered to the depositary agreed that the depositary has the obligation to deliver or return the thing to the owner at a certain time or when a condition is fulfilled.
3. The typical conduct of appropriating the thing or denying having received it.
4. As a subjective type, is necessary to have acted with malice and intent to become the owner of the thing.
When to consult a misappropriation specialist lawyer?
- If you are a trustee or manager of a movable property and is being investigated or accused of breach of trust.
- If have been entrusted a movable property or money in someone the trustee manager of the property and does not want to return it.
- If you want to prevent and take measures to prevent abusing your trust and shield you against any maneuvers.
Examples of misappropriation
- A car mechanic who, according to the victims, was appropriating the vehicles given to him by his customers for repairs and in the end he even refused to return them.
- A manager receives a certain amount of money to be paid to a State entity and, instead of handing it over, he appropriates it.
If you are interested in our services as criminal lawyers or would like to talk to us, we invite you to contact us.
Our specialized lawyers in misappropriation in Panama have extensive experience in defending clients who are under investigation or charged with misappropriation crime or economic crimes. Consequently, our in-depth knowledge of litigation allows us to give advice that is not only theoretically correct but that contemplates all the practical obstacles that clients face in everyday business or criminal proceedings.
Through our work we have successfully obtained the respective reinstatement of rights. We have also advised clients to take proactive measures that have prevented potentially costly litigation.