Criminal bankruptcy liability of a managing director for delayed insolvency filing under German law

The Second Criminal Senate of the Federal Court of Justice agreed with the legal view of the referring Third Criminal Senate and overruled its own prior jurisprudence regarding the criminal liability of managing directors of limited liability companies for bankruptcy offenses. The dispute concerned whether a managing director who has failed to fulfill their statutory obligation to file for insolvency can be held criminally liable under the German Bankruptcy Act when the company is later placed into insolvency proceedings, specifically addressing the question of whether such liability exists even if the insolvency petition was not filed until after the insolvency cause arose. The decisive legal basis involves the interpretation of § 15a (1) and (3) of the German Insolvency Code (Insolvenzordnung) in conjunction with §§ 153, 154, and 157 of the German Criminal Code (Strafgesetzbuch), which define the elements of the bankruptcy offense (Bankrott) and the specific duty of business entities to file for insolvency without undue delay once insolvency grounds exist, establishing that the managing director's omission constitutes a completed offense upon the occurrence of the insolvency cause, regardless of subsequent corrective actions.