2. Delayed insolvency
The most frequent criminal charge in connection with the crisis of a company is the accusation of delaying insolvency proceedings pursuant to § 15a InsO. This paragraf is quickly fulfilled, because a managing director is obliged to file for insolvency within a very short period of three weeks after the first signs of a permanent business crisis. If he does not comply with this obligation, there are considerable risks of criminal liability. This is usually accompanied by the risk of civil liability that threatens the very existence of the company.
The prerequisite for the obligation to file for insolvency is the so-called maturity for insolvency. This occurs when a company is insolvent or overindebted.
Overindebtedness is assumed if the debtor’s assets no longer cover the existing liabilities, unless the continuation of the company is predominantly probable under the circumstances (see § 19 Para. 2 InsO).
The definition of over-indebtedness was revised in 2012 in view of the economic crisis. According to the current version of the law, a so-called positive continuation prognosis can lead to an economic negation of overindebtedness, although the balance sheet is already formally negative. For overindebtedness, it therefore depends on the forecast as to whether the company will be in a position to raise sufficient money to meet its payment obligations within a certain period of time.
Due to the fact that the focus is on economic standards, considerable uncertainties often arise in practice, which – depending on the perspective and procedural situation – can have an effect to the advantage or to the disadvantage of a targeted managing director.
In the legal discussion of overindebtedness, particular attention must be paid to whether all items that cannot be capitalized under commercial or tax balance sheet regulations (e.g. tangible assets) were taken into account in the insolvency receivables list. Different evaluation methods often lead to different results. In addition, there is ample scope for evaluation of hidden reserves, letters of subordination, waiver of claims or letters of comfort.
For defence, the fact that a managing director often does not know all the facts on which the company valuation is based offers a wide margin of manoeuvre.
According to the legal definition, insolvency occurs when a debtor is not in a position to meet the due payment obligations. It is generally assumed when a company has stopped making payments. The mere deferral of payment, i.e. the shortage of liquid funds that can be remedied in the short term, must be deferred from insolvency. In the process of accrual and deferral, it must be examined whether solvency can be restored, for example, through loans, the addition of equity capital, income from normal business operations or the sale of assets.