Bankruptcy crimes

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Under bankruptcy offenses ( § 297 InsO ), insolvency offenses or bankruptcy offenses ( § 283 Penal Code ) refers to offenses which, with the opening or the implementation of insolvency proceedings of a company or natural person communicate. If someone is unable to pay their debts or is threatened with getting into this situation, then there is insolvency and thus bankruptcy . Corporations and legal entities can also become insolvent due to over-indebtedness, i.e. when the registered share capital is no longer available or the liabilities exceed the assets .

Germany

Due to the order on communications in civil matters (MiZi), the public prosecutor's office is informed of every insolvency procedure in Germany (including consumer insolvencies ). Every public prosecutor's office must check whether the following characteristics are present:

In the case of legal persons, the offense of delay in insolvency according to Section 15a InsO can apply. The prerequisite is the existence of an economic crisis. This is given in the event of over-indebtedness or insolvency. Even when there is a threat of over-indebtedness, the personally liable partners , managing directors and board members have clear obligations. As soon as one of the reasons for opening insolvency proceedings is present, the company concerned must file for bankruptcy with the competent bankruptcy court without undue delay (immediately), but no later than 21 days ( § 64 ) . If no insolvency is filed within 21 days and the reason for insolvency is not eliminated (e.g. by adding capital), a criminal offense of delaying insolvency ( Section 15a , formerly Section 84 in conjunction with Section 64 GmbHG) is to be assumed.

If, in this situation (within insolvency proceedings), assets are withdrawn from the company, risky speculative transactions are carried out or existing assets are used up or squandered, this also results in criminal insolvency offenses .

Other countries

  • In Switzerland , bankruptcy and debt enforcement offenses are regulated in Articles 163–171 StGB. As a special feature, delaying bankruptcy is not punishable per se in Switzerland.

See also

Literature (selection)

  • Thomas Müller: Fraudulent bankruptcy and seizure fraud (Art. 163/164 StGB) (=  Zurich studies on criminal law . No. 10 ). Schulthess Polygraphischer Verlag, Zurich 1982, ISBN 3-7255-2230-8 .
  • Stergios Spyropoulos: bankruptcy crimes under German and Greek law. At the same time a contribution to the addition of the general clauses of bankruptcy criminal law and to the reform of the Greek bankruptcy criminal law . Lang, Frankfurt am Main / New York 2001, ISBN 3-631-38002-X .
  • Reinhard Reck: Insolvency crimes and their avoidance . Verlag für die Rechts- und Anwaltspraxis, Herne / Berlin 1999, ISBN 3-89655-014-4 .
  • Konstantin Dittmann: Determination of insolvency and overindebtedness as prerequisites for insolvency crimes according to [paragraph] 283 STGB . GRIN Verlag, Munich 2010, ISBN 978-3-640-49971-7 , urn : nbn: de: 101: 1-201009136338 (University dissertation 2009).
  • Raimund Weyand, Judith Diversy: Insolvency offenses . Business collapse and criminal law . 10th, revised edition. Erich Schmidt Verlag, Berlin 2016, ISBN 978-3-503-16612-1 (first edition: 1990).

Web links

Individual evidence

  1. ↑ Overindebtedness § 19 of the Insolvency Code.
  2. ↑ § 15a Paragraph 4: "A prison sentence of up to three years or a fine will be punished for anyone who [...] does not submit an application to initiate, correctly or not in time."
  3. ^ Raimund Weyand: Insolvency offenses. Business collapse and criminal law . 6th, revised and expanded edition. Erich Schmidt Verlag, Bielefeld 2003, ISBN 3-503-06346-3 .
  4. ↑ Fraudulent Krida § 156 StGB .
  5. ↑ Decisions of the Liechtenstein courts - guideline 1f. gerichtsentscheide.li, 2008, accessed on November 16, 2016 .
  6. ↑ StGB - Swiss Criminal Code of December 21, 1937 - Art. 163-171 . First Book: General Provisions , Part One: Crimes and Offenses , 2016, pp. 73–77 ( admin.ch [PDF] as of October 1, 2016).