Conviction for simple bankruptcy of a company director

Facts

The case concerns C., a Portuguese national who founded T. SA in 1983 with the aim of selling bottle stoppers and decorative cork. R., a Swiss national, was the sole director of T. SA with individual signature authority. Although the first balance sheet of 1983 showed a profit, the company quickly encountered financial difficulties. In July 1984, the losses were estimated at nearly 100,000 francs and the director R. alerted C. to the desperate situation of the company. Despite these warnings, C. continued the operation without taking the necessary measures, in particular without notifying the judge in accordance with Art. 725 para. 2 CO. T. SA was finally declared bankrupt on March 8, 1985, with liabilities of more than 200,000 francs and virtually no assets.

The Criminal Court of the District of Nyon sentenced C. to 10 days' imprisonment with probation for simple bankruptcy. The Criminal Cassation Court of the Vaud Cantonal Tribunal dismissed C.'s appeal against this conviction.

Considerations

The Federal Tribunal dismisses C.'s appeal for nullity. The cantonal court correctly applied Art. 165 no. 1 CC regarding simple bankruptcy. Although C. made efforts to save the company, his culpable behavior contributed to the deterioration of the financial situation of T. SA while he knew it was insolvent. Despite the clear warnings of the director R., C. stubbornly continued the activity without taking the necessary measures, in particular without notifying the judge in accordance with Art. 725 para. 2 CO. This behavior can be qualified as…