Insolvency Law – Your Defense Against Accusations of Delaying Insolvency

As a specialized law firm for criminal law and insolvency law, we represent managing directors, board members, and entrepreneurs nationwide in all phases of investigation and criminal proceedings concerning insolvency delay.

Our goal is to prevent reputational damage, avoid personal liability, and swiftly conclude proceedings to prevent escalation.

Whether subpoena, search, or indictment:
We offer clear legal guidance, experienced criminal defense, and economically sound advice – in person in Göttingen, Kassel, or Hanover, and nationwide flexibly via video consultation.

What is Insolvency Delay?

Insolvency delay is considered the central criminal offense at the intersection of insolvency and criminal law and primarily concerns managing directors and board members of corporations. It refers to the delayed filing of an insolvency petition, even though grounds for insolvency, such as illiquidity or over-indebtedness, already exist.

Legal Basis

Section 15a of the Insolvency Code (InsO) obliges authorized representatives – such as GmbH managing directors – to file an insolvency petition without undue delay, but no later than within three weeks, in cases of illiquidity or over-indebtedness.

If the managing director misses this deadline, they face

• imprisonment for up to 3 years or a fine (in case of intent)
• imprisonment for up to 1 year or a fine (in case of negligence)
• additionally: personal civil liability for consequential damages

Important: Mere illiquidity is not sufficient – the conduct only becomes punishable if no insolvency petition is filed within the statutory period despite knowledge or gross negligence.

Insolvency Delay: Risks Involved

Criminal proceedings for insolvency delay can have far-reaching consequences – not only criminally, but also personally, professionally, and economically:

• Imprisonment or Fine
  Even negligent conduct can lead to significant fines. In cases of intent, imprisonment for up to three years (§ 15a para. 4 InsO) is possible, with serious repercussions for reputation and professional life.
  
  
• Professional Consequences
  Especially for managing directors, board members, and de facto corporate officers, an investigation can also trigger professional consequences, such as a temporary ban on activities (§ 6 GmbHG).
  
  
• Liability with Private Assets
  Regardless of criminal proceedings, civil liability claims can be asserted against managing directors personally, e.g., by creditors, the tax office, or social security.
  
  
• Reputational Damage and Entry in Criminal Record
  Even a fine can, under certain circumstances, lead to an entry in the criminal record – with implications for future business relationships and professional prospects.
  
  
• Automatic Referral to the Public Prosecutor’s Office
  In many cases, the opening of insolvency proceedings or a rejection due to insufficient assets automatically triggers a notification to the public prosecutor’s office. This often happens even without an external complaint.
  
  
• Further Criminal Charges
  Not infrequently, other offenses are also at issue alongside insolvency delay, e.g., bankruptcy (§ 283 StGB), fraud (§ 263 StGB), or withholding social security contributions (§ 266a StGB).

Our Goal: We work to limit risks early – by avoiding criminal proceedings, a dismissal under § 170 para. 2 StPO, or a consistent defense against unjustified accusations.

Why You Need Specialized Defense Now

Criminal proceedings for insolvency delay fundamentally differ from classic criminal proceedings. They typically affect entrepreneurs in exceptional situations – often under significant economic, emotional, and time pressure.

Precisely for this reason, it is crucial to involve a defense specialized in insolvency criminal law early on. Because it’s not just about legal nuances, but about strategic decisions with far-reaching consequences.

Effective defense in insolvency criminal law requires:

• profound knowledge of criminal law and insolvency law
  We combine our criminal and commercial law expertise, also considering tax and corporate law contexts.
  
  
• understanding of economic contexts and balance sheets
  It is often disputed whether over-indebtedness or illiquidity actually existed. We analyze your documents from a criminal law perspective.
  
  
• experience with insolvency administrators, investigative authorities, and courts
  We know the typical procedures and decision-making processes and know exactly where we can intervene.
  
  
• strategic planning and procedural management
  The correct assessment of the case file content, the communication strategy with the public prosecutor’s office, and the chances of a case dismissal are crucial.
  

Important: Crucial decisions can often be made already during the investigation – for example, through active communication with the public prosecutor’s office or by submitting exculpatory documents.

Our Approach: We focus on early, discreet, and solution-oriented representation. Our goal is not only to minimize your criminal risks but also to secure your professional capacity to act.

What We Do for You – Your Individual Defense Strategy

Proceedings for insolvency delay concern not only the legal question of the duty to file – they concern your entrepreneurial and personal future. Therefore, we develop a tailored defense strategy for each case, which is both legally and economically sound.

Our defense pursues three central goals:

Avoidance of a Main Hearing

Many proceedings can already be resolved at the investigation stage through an early statement, an exculpatory submission, or communication with the public prosecutor’s office – ideally through:

• Dismissal due to insufficient suspicion (§ 170 para. 2 StPO)
• Dismissal with conditions (§ 153a StPO)
• Penal order without public hearing

Sentence Mitigation in Case of Proceedings

Should an indictment or main hearing occur, we do everything possible to achieve the lowest possible sentence, for example by:

• Proof of lack of intent (a significantly lower penalty is threatened for negligent insolvency delay)
• Cooperation in clarification
• Redress of damages
• Exculpatory circumstances of the corporate crisis
  

Avoidance of professional and economic ancillary consequences

In addition to a possible prison sentence, further consequences threaten. We pay particular attention to:

• Avoiding an entry in the criminal record (e.g., by limiting to a fine below 90 daily rates)
• Preventing managing director prohibitions (§§ 6, 35 GmbHG)
• Avoidance of liability towards creditors or social security institutions
• Minimization of reputation-damaging measures

Our Goal: Your proceedings should not become a negative turning point. We advocate for a solution that opens the way back to entrepreneurial normality for you.

Typical Cases & Target Groups in Insolvency Law

Our experience shows: investigations into insolvency delay usually do not affect “classic criminals,” but rather entrepreneurs who have fallen into economically difficult waters – often unexpectedly and through no fault of their own. The defense must therefore be sensitive and strategic.

Typical Case Scenarios

• Delayed Filing in Case of Illiquidity
  Often, the occurrence of grounds for insolvency (e.g., illiquidity or over-indebtedness) is recognized too late or suppressed in the hope of restructuring. If the insolvency petition is then not filed in due time, an investigation threatens.
  
  
• Investigations Following Complaints by Creditors or Insolvency Administrators
  Public prosecutor’s offices often initiate proceedings based on complaints by creditors in insolvency proceedings or reports by the insolvency administrator, sometimes even automatically after rejection due to insufficient assets.
  
  
• Accusation of De Facto Management
  Not only formal managing directors are obliged to file. Anyone who de facto manages the business can also be held responsible – with all criminal consequences.
  
  
• Accompanying Accusations
  Insolvency delay often occurs in connection with other offenses, such as:
  
  • Bankruptcy (§ 283 StGB)
  • Withholding social security contributions (§ 266a StGB)
  • Tax evasion (§ 370 AO)
  • Embezzlement or fraud (§§ 266, 263 StGB)

Typical Target Groups

• Managing directors and board members (GmbH, AG, gGmbH, UG)
• Shareholder-managing directors (especially in GmbH & Co. KG)
• Economically involved parties with de facto management power
• Advisory professions with potential co-responsibility (e.g., tax advisors within the scope of § 34 AO or in case of advisor liability under StaRUG)

Important: Many clients do not know at the time of mandate that they may have already committed a criminal offense or mistakenly assume that a restructuring attempt has an exculpatory effect. This is precisely where we come in: with clarification, legal classification, and resolute defense.

Your Contact for Insolvency Law – Nationwide