Delay in Filing for Insolvency under German Law – Criminal Liability and Defence in Frankfurt
The offence of delaying insolvency filing (Insolvenzverschleppung) under Section 15a of the German Insolvency Code (InsO) occurs when a company’s management fails to file for insolvency in due time despite insolvency or over-indebtedness. The rule makes this omission a criminal act for responsible corporate officers. Learn more about related economic offences on our white collar crime defence page or speak directly with our English-speaking lawyers in Frankfurt.
Who Must File? (Persons Liable)
The duty to file lies with members of the legal representative bodies and liquidators of legal entities — e.g. managing directors of a GmbH or board members of an AG, including de facto directors. If a company lacks active management, Section 15a(3) InsO extends liability to all shareholders (GmbH) or supervisory board members (AG/co-ops). Third parties can also be liable for participation (aiding or abetting). For strategic defence, see criminal defence overview.
When Does the Duty Arise? (Insolvency Grounds)
- • Inability to pay – the company can no longer meet due obligations to a material extent.
- • Over-indebtedness – liabilities exceed assets and there is no positive continuation prognosis.
Filing Deadlines
- • Three weeks from occurrence of insolvency
- • Six weeks from over-indebtedness (only if that ground applies alone)
Restructuring efforts do not extend these maximum limits. The purpose is a swift filing to protect creditors and the market. For corporate-crime compliance, visit criminal defence in Germany.
Form and Accuracy of the Application
The filing must be formally valid and factually accurate. Liability arises not only from total omission or delay but also from a timely yet incorrect application lacking required information.
Over-Indebtedness and Continuation Prognosis
The going-concern prognosis is central to assessing over-indebtedness. If sustainable continuation of business is more likely than not, over-indebtedness is excluded. Without such prospect, a formal balance-sheet test on the reporting date is required, based on realistic asset values.
Intent, Negligence and Justification
- • Intent: awareness or acceptance of the management role, the insolvency ground and failure to file.
- • Negligence (§ 15a (5) InsO): breach of care, e.g. ignoring warning signs, forgetting to file, or relying on unfounded hopes of rescue.
- • Justification: practically rare; shareholder or supervisory-board instructions to withhold filing do not justify inaction.
Limitation and Jurisdiction
- • Limitation: five years for intent, three years for negligence.
- • Prosecution: typically by specialised economic-crime prosecutors.
Common Pitfalls in Practice
- • Misjudging when the filing period starts — it begins with the objective occurrence of insolvency, not subjective awareness.
- • Lack of reliable liquidity planning or going-concern prognosis.
- • Waiting for investor talks beyond statutory deadlines.
- • Formal or content errors in the application itself.
Compliance Checklist
- • Early-warning system (liquidity planning, KPI monitoring)
- • Clear roles and escalation procedures (organ liability, supervisory-board involvement)
- • Documented restructuring plans with audit trails
- • Deadline tracking (3-/6-week calendar)
- • External review by tax advisors or auditors for plausibility
FAQ: Delay in Filing for Insolvency (§ 15a InsO)
When must insolvency be filed?
Within three weeks of insolvency or six weeks of over-indebtedness (if only that ground exists).
Who is criminally liable?
Managing directors, board members, liquidators, and — if management is absent — shareholders (GmbH) or supervisory board members (AG/co-ops). Third-party participation is possible.
Can investor negotiations justify delay?
No. Deadlines are strict; ongoing discussions do not suspend the filing obligation.
Is an incorrect or incomplete application punishable?
Yes. Even a timely but materially inaccurate filing can trigger liability.
What distinguishes over-indebtedness from insolvency?
Insolvency concerns liquidity; over-indebtedness compares assets and debts but is excluded if continuation is more likely than not.
Contact Our Criminal Defence Lawyers in Frankfurt and Nationwide
Buchert Jacob Peter has more than 25 years of experience defending in economic-crime and insolvency-related proceedings across Germany.
- • Frank M. Peter – Specialist Lawyer for Criminal Law
- • Dr Caroline Jacob – Specialist Lawyer for Criminal Law
- • Dr Sven Henseler – Diplom-Finanzwirt (FH)
- • Of Counsel: Prof. Dr Frank Peter Schuster
- • Cooperation Partner: Frank Wehrheim – Tax Advisor and former Tax Investigator
📞 Telephone: +49 69 710 33 330
✉️ Email: kanzlei@dr-buchert.de
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