Under bankruptcy (ital. Banca rotta , "battered table") refers to the insolvency and in particular the insolvency of a debtor (colloquial also bankruptcy or bankruptcy ). In Germany, this term criminally a bankruptcy offense referred.
Italian money changers of the Renaissance offered their services on tables (the Italian banco can be a counter or a workbench). If a money changer could not fulfill his contractual obligations, his table would be destroyed. So it was already earlier in Italy that financially troubled debtors endangered their existence. Today in Italy the term encompasses behavior that is harmful to creditors. Bankruptcy has been regulated since March 1942 in the Italian “Legge fallimentare” (Art. 216, 217).
The term seems to have appeared for the first time in Hamburg in 1457 : "Bankeruth spoelen often Meer koepen dan sy betalen kunnen." causing harm to his creditors ”, as punishment should come to the workhouse or penitentiary. That was the precursor to today's fraudulent bankruptcy. In 1830 it was still believed that someone would go into fraudulent bankruptcy if they could pay but would not.
The term bankruptcy can only be found today in German criminal law ( § 283 , § 283a StGB ) and is one of the insolvency offenses . Here, some deliberate elements mentioned in the law in the area of fraudulent over-indebtedness or in the event of impending or actual insolvency are subject to the threat of punishment. The acts finally enumerated in the law must be committed during a corporate crisis or cause such a crisis. Most of these are abstract high-risk offenses, so that a specific risk to individual or all creditors is not assumed. For the interpretation of the “economic crisis”, the legal definitions of the Insolvency Code (InsO) offer a first and important orientation. With the exception of these few criminal offenses, the legislature in Germany has been using the term insolvency since January 1999 . Since then, the bankruptcy of a private individual has been treated as personal bankruptcy .
According to this, a prison sentence of up to five years or a fine is punished for anyone who is over-indebted or threatened or has become insolvent
- Eliminates or conceals parts of his assets that belong to the bankruptcy estate in the event of the opening of insolvency proceedings or destroy, damage or render them unusable in a manner that is contrary to the requirements of a proper economy,
- enters into loss-making or speculative transactions or contracts for differences in goods or securities in a manner that is contrary to the requirements of a sound economy or is consumed or owed excessive amounts through uneconomical expenditure, gambling or wagering,
- Procures goods or securities on credit and sells or otherwise sells them or the items made from these goods significantly below their value in a manner that is contrary to the requirements of a proper economy,
- Feigns the rights of others or recognizes fictitious rights,
- He fails to keep trading books that he is legally obliged to keep or keeps or changes in such a way that the overview of his assets is difficult,
- Commercial books or other documents, which a merchant is obliged to keep under commercial law, are removed, concealed, destroyed or damaged before the expiry of the retention periods for those subject to accounting obligations, thereby making it difficult to keep track of his assets,
- contrary to commercial law
- Prepares balance sheets in such a way that it is difficult to keep track of their assets, or
- it fails to draw up the balance sheet of its assets or inventory in the prescribed time, or
- in any other way that grossly contradicts the requirements of a sound economy reduces his assets or hides or disguises his real business relationships.
The attempt of this offense is also punishable. The act generally presupposes intent , contingent intent is sufficient. However, certain cases of negligent acts and the negligent causation of success are also punishable under Section 283 (4) and (5) of the Criminal Code, but threatened with a lesser penalty. The objective condition of criminal liability is that the insolvency procedure has been opened or the opening has been rejected due to lack of assets or the perpetrator has stopped his payments.
In addition to bankruptcy, a further criminal offense in Germany in connection with insolvency and over-indebtedness of companies is also delaying insolvency .
The term “insolvency” is defined in Section 17 (2) InsO . According to this, the debtor is insolvent if he is unable to meet the due payment obligations. The point in time when the respective claims are due is decisive. The due date that has already occurred can (only) be eliminated through deferral or installment payment agreements. A distinction must be made between the mere payment stoppage. A payment stoppage exists if there is a short-term and recoverable lack of liquidity, but the restoration of solvency can be expected with sufficient certainty within a three-week period.
The insolvency can be proven by a balance sheet date based on the liquidity balance. However, it can also be suspected if there are certain indications, e.g. B. by expressly declaring that they are unable to pay, failed enforcement attempts or the non-payment of wages, salaries or social security contributions. In this case, it is up to the actors to refute the presumption of insolvency on their part.
Austria and Liechtenstein
The bankruptcy offense (in Liechtenstein bankruptcy ) is both a criminal offense in the Austrian and the Liechtenstein Criminal Code (Criminal Code). It roughly corresponds to German bankruptcy in criminal law. Both distinguish between fraudulent krida (or fraudulent bankruptcy ) and negligent krida (or negligent bankruptcy ).
According to Section 156 of the Criminal Code (Austria, Liechtenstein), anyone who thwarts or diminishes the satisfaction of one of their creditors by concealing or reducing their assets is punished for fraudulent crime (Liechtenstein: Fraudulent bankruptcy) with imprisonment from six months to five years . For the negligent Krida, § 159 StGB was changed in the meantime (2000 and 2007) to “grossly negligent impairment of the interests of the creditors”, i. H. the criminal offense has been considerably narrowed down compared to previous versions.
In Austria , the Austrian Insolvency Code regulates the procedure under civil law .
A law on debt collection and bankruptcy law , which has been amended several times, has been in force in Switzerland since January 1, 1892 (1st version from April 1889) .
Special case of national bankruptcy
The term national bankruptcy is not a legal term in Germany ; In the literature, national bankruptcy often means the failure of a state to fulfill its financial obligations. For the Federal Constitutional Court , a state bankruptcy was the "disproportion between performance and liabilities". There is neither a standardized procedure nor recognized indicators from which a state's insolvency can be derived.
National bankruptcy was and is a common occurrence internationally in reality. State insolvency has been declared in around 90 cases over the past 200 years. In Europe, too, states have declared themselves unable to service their liabilities - some even several times. The IMF tried since November 2001 as part of its Sovereign Debt Restructuring Mechanism , the basic structures of a state bankruptcy law to develop. In April 2003, however, it became apparent that such formal crisis solution concepts did not find sufficient political support from a large number of important member states of the IMF.
- In Great Britain there is the Insolvency Act from 1986, which distinguishes between corporations ("insolvency") and partnerships and natural persons ("bankruptcy").
- In the USA , the term “bankruptcy” is always used. The Bankruptcy Act of 1898 ("Nelson Act" of July 1, 1898, ch. 541, 30 Stat. 544) was the first law to regulate bankruptcy proceedings in the USA. It was replaced by the Bankruptcy Reform Act of 1978 (95-598, 92 Stat. 2549 of November 6, 1978).
- Consumer bankruptcy proceedings
- Debt discharge
- Balance sheet falsification
- Financial tension ( corporate finance )
- Declaration of bankruptcy
- Email bankruptcy
- ↑ Gabriella Caiazza, Sprachfallen in Italian , 1999, p. 35.
- ↑ Hans Schulz (Ed.): German Foreign Dictionary . 1997, p. 108 .
- ^ Gallus Aloys Kaspar Kleinschrod : Draft of an embarrassing code of law for the Electoral Palatinate states . 1802, p. 195.
- ^ Journal of Criminal Law Care in the Prussian States , Volume 24, Berlin 1830, p. 15.
- ^ Jörg Eisele : Criminal law: property offenses, property offenses and document offenses . 2009, p. 320.
- ^ Johannes Wessels : criminal law. Special Part: 2, Offenses Against Assets . 2009, p. 246.
- ^ Johannes Wessels: criminal law. Special Part: 2, Offenses Against Assets . 2009, p. 247.
- ↑ Kai von Lewinski : Insolvency under public law and state bankruptcy (= Jus Publicum . Vol. 202). Mohr Siebeck, Tübingen 2011, p. 18.
- ↑ BVerfGE 19, 150, 159.
- ↑ Kai von Lewinski: Insolvency under public law and state bankruptcy . Mohr Siebeck, Tübingen 2011, p. 21.
- ^ Annual report 2003 . Deutsche Bundesbank , p. 110 f.