A delay in filing for insolvency involves delaying or incorrectly filing an insolvency proceedings application. Such delay is punishable under the Insolvency Code (InsO). § 15a InsO stipulates the respective obligation to apply to legal entities and companies without legal personality.
Accordingly, in the event of insolvency or over-indebtedness of the company, a request for the opening of insolvency proceedings must be submitted by the legal entity’s representatives without culpable hesitation, but at the latest three weeks after the occurrence of the insolvency or over-indebtedness.
According to § 15a, Paragraph 4, InsO, anyone who does not make this application, does not make it in time or does not make it correctly is liable to prosecution. As a penalties framework, section 15a (4) InsO provides for imprisonment for up to three years or a fine. If the offender acts negligently, the penalty is imprisonment for up to one year or a fine.
Accordingly, the starting point for criminal liability for intentional or negligent delay in filing for insolvency is the existence of an obligation to file for insolvency due to insolvency or over-indebtedness of the company.
There are various methods for determining insolvency or over-indebtedness. A distinction must be made between business management and economic crime methods. According to the business method, all liabilities due are determined on a specific date, and liquid funds are compared with these, which regularly causes difficulties for law enforcement authorities.
According to the white-collar crime method, which is also admissible in criminal proceedings, all indications are considered, allowing the conclusion that the liquidity situation is critical. Signs include non-payment of due liabilities, non-payment of social security contributions, many reminders and foreclosures, outstanding wage claims, loan terminations, return debit notes, overdraft of credit lines and tax arrears.
The team at S&E will analyse your case closely and provide straightforward guidance regarding how best to proceed considering the facts of the situation facing you.