A bookkeeping obligation exists, in particular, for merchants as defined by the German Commercial Code. Whether you are affected in your specific case should be legally examined on a case-by-case basis.
A mere late filing of accounts, contrary to commercial law requirements, does not automatically constitute a criminal offense. The decisive factor is whether the objective conditions for criminal liability are also met. The individual circumstances of each case are crucial.
According to Section 283b Paragraph 2 of the German Criminal Code (StGB), negligent conduct is sufficient in certain situations. Among other things, a prerequisite is always that the care required in traffic was disregarded and that the commission of the offense was foreseeable and avoidable. Not every organizational deficiency meets these requirements.
As a suspect, you are generally not obligated to comply with a police summons. You should not make any statements to the investigating authorities without prior legal advice. Your lawyer will usually request access to the case file first to avoid making any ill-advised statements.
The opening of insolvency proceedings or the rejection of such proceedings due to insufficient assets fulfills the objective condition of criminal liability under Section 283b of the German Criminal Code (StGB). The perpetrator's intent need not relate to this condition. Furthermore, no causal link is required between the breach of duty and this crisis situation. However, a temporal or factual connection between the breach of duty and the crisis situation is necessary. Whether and to what extent this is the case is regularly the subject of intensive legal scrutiny.
In addition to criminal sanctions, consequences under commercial or corporate law may arise. Members of the governing bodies of corporations can lose their positions under certain conditions if convicted under Section 283b of the German Criminal Code (see Section 6 Paragraph 2 of the German Limited Liability Companies Act (GmbHG), Section 76 Paragraph 3 of the German Stock Corporation Act (AktG)). For certain professional groups (in particular tax advisors, lawyers, notaries, and physicians), potential consequences under their respective professional codes of conduct must also be considered. A professional disqualification (Section 70 of the German Criminal Code (StGB)) can also be imposed by the court under certain circumstances. The individual case is always decisive.
Searches are conducted to secure evidence. Remain calm, exercise your right to remain silent, and contact a lawyer immediately. A coordinated and considered response is crucial to protecting your rights.
As soon as you become aware of an investigation – for example, through a summons or search warrant – you should seek legal advice. The sooner you act, the greater your chances of a successful defense will generally be.