Bankruptcy delay
The delayed filing of an application for bankruptcy is understood as the delay in bankruptcy (formerly bankruptcy delay) . When to file for bankruptcy, individual legal provisions determine. Delaying insolvency is regulated very differently internationally; in Germany it is a criminal offense.
Germany
The Insolvency Act due to § 15a para. 1 InsO a requirement to submit certain legal persons in case of a bankruptcy reason ( insolvency or over-indebtedness ). The reasons for insolvency are legally defined in § 17 and § 19 InsO. The delay in bankruptcy has a criminal law and a liability law (civil law) dimension . This means that, in addition to the criminal liability, the responsible body of the company (e.g. the managing director of a GmbH) must expect to be held personally liable for payments made by the company after the insolvency maturity occurred. Regulations on this can be found e.g. B. in § 64 GmbHG, § 130a HGB, §§ 92, 93 AktG.
Civil law liability risk
The civil law liability risk is considerable and, as a rule, significantly more serious for the body than the criminal law consequences. Civil liability is very complex and complicated in detail. It is constantly being developed by the highest court rulings; there are still many uncertainties and points of contention today. The BGH ruled on November 18, 2014 (Az. II ZR 231/13), June 23, 2015 (Az. II ZR 366/13) and December 8, 2015 (Az. II ZR 68 / 14) Questions about the scope of liability in the case of an existing global assignment have been significantly further developed. With a judgment of March 15, 2016 (Az. II ZR 119/14), the BGH decided that liability also applies to the director of a Limited (Ltd.) under English law, provided that the main insolvency proceedings in Germany are based on their assets Art. 3 of Regulation (EC) No. 1346/2000 (EuInsVO) is opened. The managers concerned are usually not even aware of how extraordinarily high their personal liability risk is.
Criminal law
If the debtor is a legal person , delaying insolvency is a criminal offense in Germany , regulated in Section 15a (4) InsO . The sentence is up to three years imprisonment or a fine. The negligence is punishable ( § 15a para. 5 InsO , said: BGH, decision of 13 February 2014 - 1 con 336/13..). That is why honest entrepreneurs are often liable to prosecution. There are many misunderstandings about the criminal liability norm as a whole. This uniform regulation has only existed since the MoMiG came into force on November 1, 2008. Before that, the offense was regulated in various laws: Sections 64 and 84 GmbHG old version for companies with limited liability ; Section 92 (2 ) AktG old version for stock corporations . If it is for the companies to general partnerships (oHG) or limited partnerships (KG), so were the §§ 130b, 177a HGB a. F.
The delay in bankruptcy is of considerable importance in criminal law practice. The police crime statistics show a number of 6,808 cases for 2012 with comparatively few insolvency proceedings in total. Due to statutory provisions, the insolvency courts forward every insolvency file to the responsible public prosecutor's office, which checks whether there is any initial suspicion. The file usually contains a preliminary assessment of the case by an insolvency administrator, which quickly leads to a preliminary investigation.
People who interfere very strongly in the management or who act as managing directors to the outside world can, as so-called de facto managing directors, also make themselves liable to prosecution for delaying bankruptcy and be held liable (BGH, ruling of December 18, 2014, Az. - 4 StR 323/14 on criminal liability).
The delay in bankruptcy is part of bankruptcy criminal law. Offenses that are often associated with it are bankruptcy ( Section 283 StGB ), violation of accounting obligations (Section 283b StGB), withholding remuneration ( Section 266a StGB ) and favoring creditors ( Section 283c StGB ).
The delay in insolvency with statutory health insurance funds is still regulated separately in Section 307a of the Book V of the Social Code.
Austria
In Austrian law, the penalty for delaying insolvency is called negligent krida .
Switzerland
In Switzerland, delaying insolvency is not punishable per se. Only mismanagement is punishable, i.e. H. if further action worsens the over-indebtedness, or if the financial situation is worsened in the awareness of the insolvency.
Further
The measures taken by the European Union, the ECB and the IMF to rescue the euro from the Greek sovereign debt crisis have been criticized in some cases as a way of delaying insolvency. In a 2015 article, the authors Matthias Weik and Marc Friedrich speak of the “greatest delay in bankruptcy in history”.
Individual evidence
- ↑ Olaf Hiebert: Collection of current judgments on civil liability in the case of bankruptcy delay. Olaf Hiebert, November 11, 2016, accessed on November 11, 2016 .
- ↑ Olaf Hiebert: Delayed insolvency, § 15a InsO, classic errors. Olaf Hiebert, November 11, 2016, accessed on November 11, 2016 .
- ↑ Police crime statistics 2012 (PDF) BMI. Retrieved May 14, 2019.
- ↑ Marc Friedrich, Matthias Weik: Until the bitter end - The biggest bankruptcy delay in history continues. July 27, 2015, accessed July 23, 2018 .
