Carlos Felipe B.Managing partner and founder
The scope of Law 88-26
Organic Law No. 88-26, enacted on November 5, 2026, amends Article 31 of Law 44-26. Its purpose is to jointly postpone the application of Articles 8, 9, 10, and 11 of Law 74-25, which comprise the general regime of criminal liability for legal entities. Articles 8 and 11 had already been amended by Law 44-26. Law 88-26 changes the implementation schedule for that regime. Law 88-26, official text.
How is the new one calculated? date
Law 44-26 had established a three-month period starting on August 5, 2026. Article 3 of Law 88-26 establishes a new eighteen-month period starting on November 5, 2026. Adding these eighteen months together, the date is May 5, 2028. Article 4 separately regulates the entry into force of Law 88-26 itself, with reference to its promulgation , publication , and the time limits of the Civil Code . Law 88-26, official text.
What does the reference to article 393 mean?
The provision relating to Article 393 of the Penal Code indicates that the new timeline for these four articles operates as an exception to the general rule of the Code's validity . The third paragraph clarifies the scope of the postponement and maintains the validity of the rest of the Code and the criminal liability of individuals. To analyze a specific case , the applicable provision and its validity on the date of the case must be identified . Law 88-26, official text.
When could I respond? person consulting
Article 8, as amended by Law 44-26, addresses punishable acts or omissions by bodies, representatives, or subordinates acting on behalf of the entity, whose conduct results from a breach of management, control, or supervisory duties. The imputation requires examining the specific actions attributed to the entity and the specific duty breached. For example, if a representative uses their authority to carry out an illicit transaction, the analysis must also determine how the relevant internal controls were implemented. Law 44-26, official text.
What is examined when several companies are involved
Article 11 extends liability to the legal entity that exercises legal or de facto control over the entity that committed the infraction. Among the criteria established are involvement in the events, authorization, tolerance, knowingly benefiting from them, and certain organizational deficiencies or supervisory failures. Thus, when acts are attributed to a subsidiary, it is relevant to identify who had control and what actions or omissions can be attributed to the controlling entity according to the law. Law 44-26, official text.
What value can a compliance program have?
Paragraph III of Article 8 allows for mitigation of liability when, among other circumstances, it is demonstrated that prior to the event, a prevention and compliance program existed, tailored to the size, activity, and risks of the entity, and that it was effectively implemented. It also provides for scenarios related to remediation, repair, voluntary communication, or cooperation, under the conditions of each subsection. Training records, reviews, and alert responses help demonstrate how the controls functioned in practice. Law 44-26, official text.
When controls can exclude liability
Paragraph IV of Article 8 contemplates a scenario subject to cumulative conditions. It requires demonstrating the implementation of the program and its circumvention through fraudulent means, with reporting to the authority when management becomes aware of it. It also requires that the program's non-compliance by subordinates or individuals outside management occurred through maneuvers that prevented its detection. Therefore, when evaluating this scenario, the record must allow for an examination of both the program's implementation and how its controls were circumvented. Law 44-26, official text.
How to prepare a provided program
Paragraph VI includes a conduct policy, risk identification, controls, training, supervision, financial procedures, reporting channels, investigation, and periodic review. Paragraph VII allows micro, small, and medium-sized enterprises (MSMEs) to assign compliance functions to their governing body and requires measures proportionate to their activity, volume, and risk. A small business can begin by documenting how it approves payments, who reviews exceptions, and how alerts are received and investigated. The example illustrates one way to implement controls according to the entity's operations. Law 44-26, official text.
What was the additional time period granted for?
The preamble to Law 88-26 explains that the deferral aims to provide time for organizations and institutions within the justice system to prepare. It specifically mentions micro, small, and medium-sized enterprises (MSMEs), cooperatives, and non-profit associations with limited technical or economic resources. For these entities, the timeframe allows them to review operational risks, assign responsibilities, and document the implementation of their controls before the general regime takes effect. (Law 88-26, official text )