Facts

The case concerns X., a member of the board of directors of company S., who purchased the furniture and office equipment of the company for 90,000 Swiss francs, then used the proceeds from the sale to repay an unpaid loan of 90,000 Swiss francs to company Z. Company S. was declared bankrupt on December 7, 1983. X. was convicted of granting a preference to a creditor by the cantonal court, but he filed a nullity appeal with the Federal Court.

The key facts are as follows

  • Company S. was in financial difficulty and decided to cease its activities.
  • X. purchased the furniture and office equipment of the company for 90,000 Swiss francs.
  • He used the proceeds from the sale to repay an unpaid loan of 90,000 Swiss francs to company Z.
  • Company S. was declared bankrupt on December 7, 1983.

Considerations

The Federal Court examined whether X.'s actions constituted a preference granted to a creditor within the meaning of Article 167 of the Swiss Criminal Code. The court considered that a preference granted to a creditor is only realized if the action in question is equivalent in its delinquent content to those listed by way of example in Article 167 SCC and directly tends to grant an advantage to certain creditors to the detriment of others.

The court also considered that the general clause of Article 167 SCC must be interpreted restrictively, as it can be problematic as a criminal provision. However, in this case, X.'s actions were considered to be equivalent to a preference granted to a creditor, as they aimed to grant an advantage…