Conviction for failure to keep accounting records after bankruptcy proceedings and retention obligation after deletion of a public limited company

Facts

The complainant was, until the deletion of the A. AG from the commercial register, the sole signatory and president of the board of directors. On 26 February 2001, bankruptcy proceedings were opened against the company, which were discontinued on 14 March 2001 due to lack of assets. The company was deleted from the commercial register ex officio on 27 July 2001. On 4 May 2004, the Cantonal Court of St. Gallen convicted the complainant of failure to keep accounting records (Art. 166 SCC) and execution fraud (Art. 163 SCC) and sentenced him to eight months’ imprisonment, suspended on probation for a period of three years. At the same time, the execution of a previously imposed prison sentence of six weeks was ordered.

The complainant filed a constitutional complaint and a federal nullity appeal, requesting the annulment of the judgment and his acquittal on all charges. The Public Prosecutor’s Office of the Canton of St. Gallen waived its right to file counter-remarks, and the Public Prosecutor’s Office did not comment on the appeal.

Considerations

The Federal Supreme Court first examined whether the conviction for failure to keep accounting records (Art. 166 SCC) was lawful. According to Art. 166 SCC, a person is punishable for failing to properly keep and retain accounting records such that the financial situation is not CO not fully apparent, and bankruptcy proceedings have been opened against the debtor CO a certificate of loss has been issued. The lower court assumed that the obligation to retain accounting records also existed after the discontinuation of the bankruptcy proceedings due to lack of assets and the deletion of the company from the commercial register, and that this obligation rested with the complainant.

The Federal Supreme Court, however, clarified that Art. 166 SCC only covers acts CO omissions committed before CO during the bankruptcy proceedings. The objective condition for criminal liability of the opening of bankruptcy proceedings requires a connection between the breach of duty and the financial situation at the time of the opening of the proceedings. A breach of the retention obligation after the conclusion of the bankruptcy proceedings does not fall under Art. 166 SCC, as this provision is intended to protect creditors’ claims in the bankruptcy proceedings. The retention obligation after the deletion of the company is governed by Art. 747 CO and falls within the scope of Art. 325 SCC (improper keeping of accounting records).

The Federal Supreme Court confirmed that the obligation to retain accounting records after the deletion of the public limited…