Chargeable for delayed filing of insolvency are individuals who, as a legal agent of an organization, do not immediately, latest three weeks after bankruptcy or over-indebtedness, file an application for the initiation of an insolvency proceeding over the organizations assets. Next to the penal investigation of corporate insolvency there is a threat of further punishability risks in form of elements of bankruptcy, the violation of accounting obligations as well as creditor and debtor privileges. Further, the accusation of the withholding and defalcation of remunerations and wage tax evasion appears as typical side-offences of corporate crisis in many cases.
The legal regulations of delayed filing of insolvency are only seemingly clear and in practice regularly lead to difficult legal and practical problems. The terms of “illiquidity” and “over-indebtedness” are finely differentiated by jurisdiction requirements and legislative activities. They can thus only be mastered by specialists.
With restructuring efforts a tendency is in many cases visible, to dismiss legal concerns concerning the presence of insolvency in the interest of effectively continuing the organization. Such a course of action can, in case of failure, avenge such rescue efforts since all insolvency files will be presented by the responsible local court to the prosecution for examination of a possible delayed filing of insolvency. The risk of detection is thus high. When an organizational crisis is present it is thus strongly advised to include penal consultants during the restructuring efforts in order to avoid penal complications. Also professionals with consulting occupations, such as tax accountants and public accountants, should be aware of affiliated risks of a later assistance accusation when working as a restructuring consultant.
In case of an ongoing investigative proceeding it is often required to comprehend the development of the economic situation of an organization in detail, in order to weaken the accusation that there have been grounds of insolvency already at a certain – early – point in time. For this, next to penal expertise, knowledge of insolvency- and civil law are imperative. Equally indispensable are, in order for the development of an optimal defence strategy, business know-how and a general understanding for economic connections. ECKSTEIN & KOLLEGEN meet these requirements and can thus secure a professional defence.