Facts
The complainants A. SA, B. SCI and C. SCI filed a complaint against the discontinuation of criminal proceedings against [D.] for various offenses against property, bankruptcy and documents. The complainant [D.] was a member of the Board of Directors of H.H. AG, which was dissolved and liquidated due to an organizational defect pursuant to Art. 731b para. 1bis no. 3 CO, without a formal bankruptcy being opened.
The lower court had dismissed the complainants' complaint, as it denied the complainants' status as aggrieved parties. The Federal Supreme Court confirmed this assessment.
Considerations
The Federal Supreme Court stated that in the case of offenses against property to the detriment of a stock corporation, neither the shareholders nor the corporate creditors are directly injured. The bankruptcy liquidation pursuant to Art. 731b para. 1bis no. 3 CO does not fulfill the objective criminal liability condition of the opening of bankruptcy proceedings under Art. 163-167 CC, as this is not a formal opening of bankruptcy. The legislator had consciously not created a new ground for bankruptcy with Art. 731b CO, but had merely introduced a procedure for remedying organizational defects.
It was only with the amendment of Art. 731b CO by the addition of a new para. 4 in 2021 that it was provided that the liquidators must report the over-indebtedness to the court for the opening of bankruptcy proceedings.…