Delaying insolvency proceedings refers to the unlawful delay, omission, or incorrect filing of an insolvency petition despite the company being insolvent. The legal basis is Section 15a of the German Insolvency Code (InsO), which regulates the obligation to file for insolvency for certain business entities. The decisive factor is whether the company was insolvent (Section 17 InsO) or over-indebted (Section 19 InsO). Key criteria are not catchphrases, but rather the objective economic situation and the duties of the respective company body.
Those subject to the filing requirement include, in particular, managing directors of limited liability companies (GmbHs), members of the management board of stock corporations (AGs), and other corporate representatives of legal entities. Even in the case of companies without legal personality, individuals may be subject to the filing requirement if statutory provisions apply.
Internal task assignments do not, in principle, absolve one from legal responsibility. Particularly relevant: Even de facto managing directors who actually exercise management functions without being formally appointed can be held criminally liable.
The maximum period is linked to the objective occurrence of insolvency – not to your subjective knowledge of it. It therefore begins at the point in time when insolvency or over-indebtedness has actually occurred.
Neither of these deadlines are automatically exhaustive waiting periods: "Without culpable delay" means that the application must generally be submitted immediately. The maximum deadline only applies if a realistic attempt to eliminate the insolvency is seriously pursued within this timeframe.
Insolvency is regularly assessed based on a liquidity statement that compares outstanding liabilities with available funds. Investigative procedures involve evaluating accounting records, bank statements, dunning procedures, enforcement measures, and cash flows.
Other indicators can include: returned direct debits, loan terminations, or persistently outstanding wages and contributions. It is often disputed whether there was a mere payment delay or a sustained funding shortfall.
Over-indebtedness particularly affects corporations and is not dependent on
Over-indebtedness particularly affects corporations and does not depend solely on a balance sheet deficit. The decisive factor is whether a going concern forecast is highly probable.
For this to be the case, financing, earnings prospects, and stabilization measures must be comprehensible and documented. Without a viable forecast, over-indebtedness can exist even if the business is still operational. In criminal defense, the plausibility of the forecast is often a key point of examination.
Intentional violation of the obligation to file for insolvency is punishable under Section 15a Paragraph 4 of the German Insolvency Code (InsO) by a fine or imprisonment of up to three years. In cases of negligence, the penalty is less severe under Section 15 Paragraph 5 of the InsO: imprisonment of up to one year or a fine.
Yes. In parallel, liability claims under Section 15b of the German Insolvency Code (InsO) may arise, particularly regarding payments made after the onset of insolvency. Furthermore, claims for avoidance and restitution, as well as civil claims for damages, are possible. Corporate law consequences and practical restrictions on future corporate positions may also occur. Therefore, the defense should always consider both criminal and economic consequences together.
In times of crisis, the question regularly arises as to which payments were still permissible or even required, and which improperly reduced the available assets. Investigative authorities frequently examine payment prioritizations, distributions to shareholders, intra-group transfers, or selective creditor satisfaction. Thorough documentation of the decision-making criteria can be crucial in these situations.
In such situations, you should exercise your right to remain silent and Seek legal assistance immediately.
Often, yes. In practice, in addition to Section 15a of the German Insolvency Code (InsO), the following are regularly examined: bankruptcy offenses (Section 283 of the German Criminal Code (StGB)), violation of the obligation to keep accounts (Section 283b StGB) or preferential treatment of creditors (Section 283c StGB), withholding of wages (Section 266a StGB), breach of trust (Section 266 StGB) or fraud (Section 263 StGB).
As soon as there are signs of a crisis or you receive indications of an investigation, early consultation is advisable. This is particularly true in cases of impending insolvency, disputes over the going concern forecast, or increasing creditor action. In criminal proceedings, early access to files and a strategic approach are regularly crucial. The sooner the facts are established and the decision-making processes documented, the better accusations can be assessed and defended.