The perpetrator of preferential treatment of creditors can only be the debtor himself. However, third parties who participate in the preferential treatment—such as business partners, employees, or relatives of the debtor—can be criminally liable as instigators or accomplices. The favored creditor himself is generally not liable under Section 283c of the German Criminal Code (StGB) simply by accepting a benefit. punishable.
In principle, any person acting with the debtor's consent or on their behalf can be a perpetrator of preferential treatment of a debtor – for example, employees, business partners, or relatives of the debtor. The debtor themselves is not a suitable perpetrator under Section 283d of the German Criminal Code (StGB). However, they can be prosecuted under Section 283 of the German Criminal Code (bankruptcy).
Yes. Both Section 283c Paragraph 2 and Section 283d Paragraph 2 of the German Criminal Code (StGB) criminalize even the attempt. Therefore, for example, merely beginning to transfer assets is sufficient, even if the transfer ultimately does not take place.
Only actions relating to assets that would form part of the insolvency estate upon the commencement of insolvency proceedings are punishable. The civil law classification – for example, in the case of security assignments, retention of title, or trusts – is therefore often a central point in the proceedings. Without a connection to the insolvency estate, the objective elements of the offense are lacking.
In cases of preferential treatment of debtors, Section 283d Paragraph 3 of the German Criminal Code (StGB) provides for an increased penalty of six months to ten years' imprisonment – particularly if the perpetrator acts out of greed or knowingly endangers many people by placing them at risk of losing their assets or causing them financial hardship. For preferential treatment of creditors (Section 283c StGB), there is no legally defined particularly serious case.
Criminal liability for preferential treatment of creditors under Section 283c Paragraph 1 of the German Criminal Code (StGB) always requires certain knowledge of insolvency – conditional intent is not sufficient in this respect.
Section 283d of the German Criminal Code (StGB) contains two variants of the offense. Section 283d paragraph 1 number 1 requires acting with knowledge of impending insolvency. Section 283d paragraph 1 number 2, on the other hand, covers cases where the offense is committed after a cessation of payments, during ongoing insolvency proceedings, or during the preliminary proceedings. In this case, conditional intent with regard to all elements of the offense is sufficient; knowledge of impending insolvency is not required.
Yes. Both Sections 283c and 283d of the German Criminal Code (StGB) cover actions taken before the commencement of insolvency proceedings. However, the decisive factor is always that one of the objective conditions for criminal liability – cessation of payments, commencement of insolvency proceedings, or rejection of the commencement due to insufficient assets – actually occurs later.
In addition to fines or imprisonment, confiscation measures, as well as professional or corporate law consequences, may be imposed. Civil liability risks – for example, under Section 15b of the German Insolvency Code (InsO) – may also exist. The economic and professional repercussions of an investigation can therefore often be significant – even if it ultimately does not lead to charges.
Do not make any statements about the matter without first seeking legal advice. Exercise your right to remain silent and contact a criminal defense attorney immediately. The sooner you seek legal support, the greater your options will be.