Libro Segundo Título X. De los delitos contra la economía nacional, el comercio, la industria y el régimen tributario

Whoever, with illicit purposes, performs acts to the evident detriment of the national economy, absorbing the production of one or more industrial branches, or of the same commercial or agricultural and livestock activity, or exclusively takes advantage of them through any privilege, or using any other means, or carries out maneuvers or agreements, even if disguised through the formation of several enterprises, to sell goods at specified prices to the evident detriment of the national economy or of private individuals, shall be sanctioned with imprisonment of six months to five years and a fine of five hundred to ten thousand quetzales.

The following are also considered acts of monopoly contrary to the public economy and the social interest:

1.The hoarding or withholding from consumption of articles of prime necessity, with the purpose of causing the rise in prices in the domestic market.

2.Any act or procedure that prevents or intends to prevent free competition in production or in commerce.

3.The agreements or pacts entered into without prior government authorization, aimed at limiting the production or manufacture of any article, with the purpose of establishing or maintaining privileges and profiting from them.

4.The sale of property of any nature, below cost price, which has as its object preventing free competition in the domestic market.

5.The exportation of articles of prime necessity without permission from the competent authority, when required, if scarcity or high prices may thereby be produced.

The person liable for any of the acts listed above shall be sanctioned with imprisonment of six months to three years and a fine of two hundred to five thousand quetzales.

Whoever, by spreading false rumors, propagating false news or availing himself of any other similar artifice, diverts or falsifies the natural economic laws of supply and demand, or breaks the ordinary conditions of the market, producing by means of such dealings the unjustified increase or decrease in the value of legal tender currency, or in the current price of merchandise, of public or private income, of marketable securities, of wages or of any other thing that is the object of contracting, shall be sanctioned with imprisonment of one to five years and a fine of one thousand to one hundred thousand quetzales.

In the event that the crime contemplated in this article is established in a chain of businesses, it shall be taken as an independent crime for each one in which the aforementioned crime is committed.

Commits an exchange crime:

1)Whoever does not sell to the Banco de Guatemala or to the Banks of the system authorized to operate in exchanges, the foreign currency that he were obligated to trade, within the legally established time;

2)Whoever, without being legally authorized, habitually engages for profit in buying and selling foreign currency;

3)Whoever, in order to carry out imports or exports, makes or uses an invoice or other false document or containing false or inaccurate data regarding the value, quantity, quality or other characteristics of those operations;

4)Whoever carries out exports without having previously obtained the export exchange license or other legally necessary authorization;

5)Whoever, by means of fraud or deceit, obtains a license to acquire foreign currency from the market intended for essential payments or from the bidding market or whoever uses said foreign currency for a purpose different from that authorized.

Those responsible for the exchange crime shall be punished with imprisonment of two to five years. In addition, a fine equivalent to the amount of the unlawful act shall be imposed on them, when the amount thereof can be determined, or of five hundred to five thousand quetzales, otherwise.

Whoever prepares, discloses or reproduces by any means or system of communication false or inaccurate information that undermines the confidence of the clients, users, depositors or investors of an institution subject to the supervision and inspection of the Superintendency of Banks commits the crime of financial panic. It shall be understood that the confidence of the clients, users, depositors or investors of an institution is undermined when, as a consequence of said acts, its reputation or financial prestige is harmed or it is subjected to a massive withdrawal of deposits or investments greater than or exceeding its normal or ordinary flow.

The person responsible for the commission of this crime shall be sanctioned with imprisonment of one to three years and with a fine of five thousand to fifty thousand quetzales.

If the crime is committed knowing or foreseeing the damage or losses to be caused to the institution, the person responsible shall be sanctioned with non-commutable imprisonment of five to ten years and with a fine of one hundred thousand to eight hundred thousand quetzales. In this case, none of the substitute measures contemplated in the Code of Criminal Procedure may be granted.

The sanctions referred to in this article shall be increased by one third when the person responsible for the crime is a shareholder, director, administrator, manager, representative, officer or employee of an institution subject to the supervision and inspection of the Superintendency of Banks, or an authority, public official or employee of the Bank of Guatemala or of the Superintendency of Banks.

Excluded from the scope of this article are the authors of studies, analyses and opinions of a scientific or academic nature that, based on authentic and verifiable information, are aimed at evaluating or rating the financial system or its actors, seeking to maximize its efficiency and development.

Whoever destroys raw materials or agricultural or industrial products, or any other means of production, with serious harm to the national economy or to consumers, shall be sanctioned with imprisonment of one to three years and a fine of three hundred to three thousand quetzales.

Whoever propagates a disease in animals or plants, dangerous to livestock or agricultural wealth, shall be sanctioned with a fine of three hundred to three thousand quetzales.

If the crime referred to in the preceding article were committed negligently, the person liable shall be sanctioned with a fine of fifty to one thousand quetzales.

Whoever exploits mineral resources, construction materials, rocks and natural resources contained in the territorial sea, submarine platform, national rivers and lakes, without having the respective license or authorization, or whoever, having it, fails to comply with or exceeds the conditions provided therein, shall be sanctioned with imprisonment of two to five years and forfeiture of the implements, tools, instruments and machinery that were used in the commission of the crime.

If this crime is committed by employees or legal representatives of a legal person or a company, seeking benefit for it, in addition to the sanctions applicable to the participants in the crime, a fine of five thousand to twenty-five thousand quetzales shall be imposed on the legal person or company. If recidivism occurs, the legal person or company shall be sanctioned with its definitive cancellation.

Those who fish or hunt occasionally, for sport or to feed their family, are excepted.

Whoever contaminates the air, soil or waters by means of toxic emanations, excessive noise, dumping hazardous substances or discarding products that may harm persons, animals, forests or plantations shall be sanctioned with imprisonment of one to two years and a fine of three hundred to five thousand quetzales.

If the contamination occurs negligently, a fine of two hundred to one thousand five hundred quetzales shall be imposed.

Imprisonment of two to ten years and a fine of three thousand to ten thousand quetzales shall be imposed on the Director, Administrator, Manager, Owner or Beneficiary of an industrial operation or commercial activity who permits or authorizes, in the exercise of the commercial or industrial activity, pollution of the air, soil or waters, through toxic emanations, excessive noise, discharging hazardous substances or discarding products that may harm persons, animals, forests or plantations.

If the pollution is committed in a populated area, or in its vicinity, or affects plantations or waters intended for public service, the minimum of the imprisonment penalty shall be doubled and the maximum increased by one-third.

If the pollution is caused by fault, imprisonment of one to five years and a fine of one thousand to five thousand quetzales shall be imposed.

In the two preceding articles the penalty shall be increased by one-third if, as a consequence of the pollution, a permanent alteration of the environmental or climatic conditions results.

The same penalties indicated in the preceding article shall be applied to the public official who approves the installation of a polluting industrial or commercial operation, or consents to its operation. If he does so through fault, imprisonment of six months to one year and a fine of one thousand to five thousand quetzales shall be imposed.

Imprisonment of one to five years shall be imposed on whoever hunts animals, birds or insects without state authorization or, having such authorization, without complying with or exceeding the conditions provided for in the authorization. The penalty shall be increased by one third if the hunting is carried out in a protected area or national park.

The merchant who has been declared in fraudulent bankruptcy shall be sanctioned with imprisonment from two to ten years and special disqualification for double the time of the sentence.

When it concerns the fraudulent bankruptcy of a bank, insurance company, reinsurance company, surety company, re-surety company, finance company, general bonded warehouse, stock exchange, savings cooperative, mutualist entity, and other analogous institutions, the directors, administrators, managers, liquidators and shareholders who are found liable, or have benefited from the mismanagement, or have cooperated in the planning or execution, or in both, of any of the acts that caused it, shall be sanctioned with imprisonment from twenty to thirty years and special disqualification for double the time of the sentence. The limitation period for criminal liability and for the penalty shall not benefit the party liable for the bankruptcy declared fraudulent, in case of flight or evasion. No kind of substitute measure may be applied to the defendant nor may a reduction of the penalty be granted for any cause to the person sentenced to imprisonment for that crime.

The merchant who has been declared in culpable bankruptcy shall be sanctioned with imprisonment of one to five years and special disqualification for double the time of the sentence.

When it concerns the culpable bankruptcy of a bank, insurer, reinsurer, bonding company, re-bonding company, finance company, general deposit warehouse, stock exchange, savings cooperative, mutualist entity, and other analogous institutions, the directors, administrators, managers, liquidators and shareholders who are found liable, or have benefited from the mismanagement, or have cooperated in the planning or execution, or in both, of any or all of the acts that caused it, shall be sanctioned with imprisonment of ten to twenty years and special disqualification for double the time of the sentence. The limitation period of criminal liability and of the penalty shall not benefit the person liable for the bankruptcy declared culpable, in case of flight or evasion. *No substitute measure of any kind may be applied to the accused nor may a reduction of the penalty be granted for any reason to the person sentenced to imprisonment for that crime.

When a commercial enterprise is declared bankrupt, any director, administrator or liquidator of the failed company or establishment who cooperated in the execution of any of the unlawful acts that caused it shall be sanctioned with the same penalty prescribed for the fraudulent or culpable bankrupt, as applicable.

Those who commit any of the following acts shall be punished as accomplices in the crime of fraudulent bankruptcy:

1.Colluding with the bankrupt to fabricate credits against him or to increase them, to alter their nature or date in order to gain priority in ranking, to the prejudice of other creditors, even when this occurs before the declaration of bankruptcy.

2.Having aided the bankrupt in the absconding, removal or concealment of his property.

3.Concealing from the bankruptcy administrators the existence of property which, belonging thereto, is in the possession of the responsible person, or delivering them to the bankrupt and not to said administrators.

4.Entering into private agreements with the bankrupt to the prejudice of other creditors.

Whoever, intentionally and in order to evade payment of his obligations, makes away with his property, alienates, encumbers or conceals it, simulates credits or alienations, without leaving a person to represent him, or sufficient property to answer for the payment of his debts, shall be sanctioned with imprisonment of two to six years and a fine of two hundred to three thousand quetzales.

If the liable person is a merchant, he shall additionally be sanctioned with special disqualification for double the time of the sentence.

For the purposes of the provisions of this Code, the bankruptcy of any company constituted without the legal requirements shall be deemed fraudulent and the sanctions established in Article 350 shall be applied to those who constituted them.

A non-merchant insolvent debtor whose insolvency was the result, in whole or in part, of any of the following acts, shall be sanctioned with imprisonment of one to two years:

1º.Having made excessive domestic or personal expenditures disproportionate to his fortune, taking into account the circumstances of his rank and family

2º.Having suffered, in any kind of gambling, losses exceeding what a good father of a family would risk by way of recreation in entertainment of this kind

3º.Having sustained losses in substantial bets, simulated purchases and sales and other agiotage operations whose success depends exclusively on chance.

4º.Having alienated, with notable depreciation, property whose price was still owed.

5º.Delaying his filing for concurso proceedings when his liabilities were three times greater than his assets.

Those who commit with respect to the insolvent debtor any of the acts enumerated in Article 351 of this Code shall be punished as accomplices to the crime provided for in this article.

Whoever falsely imputes to another a fact that harms him in the credit, confidence or prestige he deserves in his commercial activities shall be sanctioned with a fine of two hundred to two thousand quetzales, if the fact does not constitute another more serious crime.

Whoever commits an act classified as unfair competition, in accordance with the provisions on that matter contained in the Industrial Property Law, shall be sanctioned with a fine of fifty thousand to one hundred thousand quetzales, except where the act constitutes an act of violation of industrial property rights defined in Article 275 of this Code.

Whoever, by means of simulation, concealment, maneuver, artifice, or any other form of deceit, induces the tax administration into error in the determination or payment of the tax obligation, in such a way as to produce detriment or impairment in tax collection, commits the crime of tax fraud.

The person liable for this crime shall be sanctioned with imprisonment of one to six years, which the judge shall grade in relation to the gravity of the case, and a fine equivalent to the tax omitted.

If the crime is committed by a foreign person, in addition to the penalties to which such person has become subject, the penalty of expulsion from the national territory shall be imposed, which shall be executed immediately after such person has served them.

Shall incur the sanctions indicated in the preceding article:

1.Whoever uses merchandise, objects or products benefited by exemptions or franchises, for purposes different from those established in the law granting the exemption or franchise, without having paid the taxes that would be applicable to the benefited merchandise, objects or products.

2.Whoever clandestinely trades merchandise evading fiscal control or the payment of taxes.

It is understood that a person acts clandestinely when, whether or not having an establishment open to the public, he engages in commercial activities and does not have a commercial license; or, having it, does not keep the accounting books required by the Commercial Code and the Value Added Tax Law.

3.Whoever falsifies, adulterates or destroys seals, marchamos, security seals, stamps or other means of tax control; as well as whoever, having said means of tax control in his charge, makes improper use of them or allows others to do so.

4.Whoever destroys, alters or conceals the characteristics of merchandise, or omits indication of its destination or origin.

5.Whoever makes, in whole or in part, a false invoice or document not authorized by the Tax Administration, with the intent to affect the determination or payment of taxes.

6.Whoever keeps double or multiple accounting in order to negatively affect the determination or payment of taxes.

7.Whoever falsifies, on forms, receipts or other means to prove payment of taxes, the seals or operation marks of the receiving tellers of the banks of the system, of other entities authorized to collect taxes or of the receiving tellers of the Tax Administration.

8.Whoever alters or destroys the fiscal control mechanisms placed on cash-register or stamping machines, fiscal seals and the like.

If this crime is committed by employees or legal representatives of a legal person, seeking benefit for the latter, in addition to the sanctions applicable to the participants in the crime, a fine equivalent to the amount of the omitted tax shall be imposed on the legal person. In case of recidivism, the legal person shall be punished with definitive cancellation of the commercial license.

9.The taxpayer of the Value Added Tax who, for his own benefit or that of a third party, fails to declare all or part of the tax charged to his clients on the sale of goods or the provision of taxable services, which he is required to remit to the Tax Administration after subtracting the corresponding fiscal credit.

10.The taxpayer who, in order to simulate the acquisition of goods or services, falsifies invoices, obtains them from another taxpayer, or pretends the existence of another taxpayer who issues them, in order to feign expenses not actually incurred, with the purpose of misrepresenting income obtained and evading or reducing the tax rate he would be required to pay, or fraudulently increasing his fiscal credit; and the taxpayer who issues them.

11.Whoever, in order to simulate the acquisition of goods or merchandise of any nature or to accredit ownership thereof, whose origin is of an illicit character or from contraband, falsifies invoices, uses falsified invoices, obtains invoices from a third party, or simulates the existence of a taxpayer.

12.Whoever issues, facilitates or provides invoices to a third party in order to simulate the acquisition of goods or merchandise of any nature, or to accredit ownership thereof, whose origin is of an illicit character or from contraband.

13.Whoever simulates, conceals, modifies, manipulates or in any way alters the content of detailed telecommunications records, with the object of impairing payment of the Tax on fixed or mobile telephone lines.

Any person who, acting as a collection or withholding agent, for their own benefit, for the benefit of a company or of a third party, fails to pay over to the Tax Administration all or part of the taxes collected or withheld, after expiration of the time limit established by the specific tax laws for paying them over, commits the crime of misappropriation of taxes. The person liable for this crime shall be sanctioned with imprisonment of one to six years, which the judge shall determine in relation to the seriousness of the case, and a fine equivalent to the tax misappropriated.

If the crime is committed by directors, managers, administrators, officers, employees or legal representatives of a legal person, for the benefit thereof, in addition to the sanction applicable to the persons liable, a fine equivalent to the amount of the tax not paid over shall be imposed on the legal person, and it shall be warned that in case of recidivism the definitive cancellation of the commercial license shall be ordered.

If the crime is committed by a foreign person, in addition to the penalties incurred, the penalty of expulsion from the national territory shall be imposed, which shall be executed immediately after those have been served.

Whoever, after having been required by said Administration, with the intervention of a competent judge, prevents the actions and proceedings necessary for the audit and determination of their obligation, refuses to provide books, registers or other accounting documents necessary to establish the tax base of the taxes; or prevents access to the computer system with respect to the register of their accounting operations, commits the crime of resistance to the auditing action of the Tax Administration.

The person liable for this crime shall be sanctioned with imprisonment of one to six years and a fine equivalent to one percent (1%) of the gross income of the taxpayer, during the monthly, quarterly or annual period under review.

If this crime is committed by employees or legal representatives of a legal person, seeking benefit for the latter, in addition to the sanctions applicable to the participants in the crime, a fine equivalent to the amount of the omitted tax shall be imposed on the legal person. If recidivism occurs, the legal person shall be sanctioned with the definitive cancellation of the commercial patent.

If the crime is committed by a foreign person, in addition to the penalties to which she has become subject, the penalty of expulsion from the national territory shall be imposed, which shall be executed immediately after she has served those penalties.