Repayment of a loan by a company to its Board of Directors President does not constitute a criminal offense of creditor prejudice

Facts

B.W. was the President of the Board of Directors and her husband F.B. was the Vice President of the Board of Directors of A. AG. On June 21, 1994, B.W. granted a loan of CHF 2,300,000 to A. AG. A. AG transferred the remaining balance of CHF 537,962.80 to B.W. to repay the outstanding debt on April 25, 1995. On June 15, 1995, A. AG was declared bankrupt. The Public Prosecutor's Office brought charges against B.W. and F.B. for creditor prejudice through asset reduction under Art. 164 No. 1 of the Swiss Criminal Code (StGB).

Considerations

The Federal Supreme Court held that the repayment of a due and enforceable loan does not fall under the offense variant of asset reduction through gratuitous disposal or disposal for an obviously lower consideration pursuant to Art. 164 No. 1 para. 3 StGB. The repayment merely led to the extinction of a liability, so there was no asset reduction to the detriment of the creditors.

Even though B.W., as the President of the Board of Directors, initiated the repayment to herself, this does not change the fact that she received the repayment as a loan creditor and not as a debtor. While Art. 172…