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Misuse of securities held in custody in securities market

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No. 34 (2021): Primer Semestre
https://doi.org/10.5354/0718-4735.2021.61280

Abstract

This paper provides a critical review on the meaning and scope of the criminal type that punishes the wrongful use of securities, or of their product, given in custody by the owner. For these purposes, to properly understand the regulatory context in which the criminal norm operates, and especially to specify what is a wrongful use of the securities held in custody, a brief description of the of the different custody systems in the Chilean securities market will be offered. Once the central features of the custody systems are described, it will be shown that the protected legal good underlying this criminal type is patrimony, whose security conditions are affected by this conduct, which therefore leads to the construction of the offense as a crime of abstract endangerment that affects an individual legal good. This, in opposition to the traditional criminal discourse that sees every offense regarding the securities market as linked to the protection of collective legal goods, usually identified with the integrity of the securities market and with the trust of the investors in the operation of its institutions. Lastly, in order to properly determine the extent of the prohibited conduct, the different elements of the offense are analyzed.

Keywords:

Custody, securities, brokers, misappropriation of funds, disloyal administration, abstract endangerment

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How to Cite
Schürmann Opazo, M. A. (2021). Misuse of securities held in custody in securities market. Revista De Estudios De La Justicia, (34), 79–98. https://doi.org/10.5354/0718-4735.2021.61280
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Revista de Estudios de la Justicia
Facultad de Derecho
Universidad de Chile
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