Insolvency criminal law
If a company gets into financial difficulties, it is often not only the loss of its entrepreneurial existence that is threatened, but also criminal proceedings for insolvency offenses (often accompanied by accusations of bankruptcy, withholding and embezzlement of remuneration, forgery of documents, breach of trust or tax evasion).
The criminal offense of protracted insolvency pursuant to Section 15a of the German Insolvency Code (InsO) is already fulfilled if the (actual or de facto) managing director of a GmbH and, under certain circumstances, also shareholders, do not file for insolvency within three weeks and file an insolvency petition when a reason for insolvency exists.
The occurrence of over-indebtedness or even insolvency within the meaning of Section 15a InsO is often not recognized and the strict three-week deadline is consequently not observed. In these cases, the managing director(s) are quickly threatened with criminal proceedings for delaying insolvency.
There may be various reasons for the initiation of preliminary insolvency proceedings. It is not only possible that a criminal complaint is filed by an aggrieved contractual partner or that facts relevant under criminal law are uncovered through research by the responsible insolvency administrator, but also that every insolvency file is forwarded to the public prosecutor’s office for the purpose of reviewing possible criminal charges when insolvency proceedings are opened or when a court order is rejected for lack of assets.
In order to prevent the initiation of such criminal proceedings, we provide preventive advice in advance, in particular to managing directors of limited liability companies and the boards of directors of stock corporations and companies.
If you have received a summons, we work towards an out-of-court settlement – ideally by discontinuing the proceedings or by issuing a penalty order. In many cases, insolvency offenses are difficult to prove. If the public prosecutor’s office does not succeed in proving over-indebtedness or insolvency, we can bring the proceedings to a positive outcome for you.
Within the scope of our defense, we always keep in mind the risk of professional consequences as well as civil liability of the parties involved and therefore not only pursue the goal of minimizing the criminal law risks for you, but also want to enable you to quickly focus on your professional goals again.