Conviction of the appellant for multiple misappropriation, breach of trust in business management, and mismanagement

Facts

The appellant [X.] was found guilty by the Cantonal Court of St. Gallen of multiple misappropriation (Art. 138 para. 1 cl. 2 SCC), breach of trust in business management (Art. 158 para. 1 cl. 3 SCC), and mismanagement (Art. 165 para. 1 SCC). He was sentenced to 12 months' imprisonment and a fine of CHF 5,000. The execution of the prison sentence was suspended on probation. In addition, civil claims totaling CHF 1,971,194.55 were upheld. The appellant was the chairman of the board of directors of Ab[. AG] , which operated an old-age and nursing home. The company incurred annual losses of around CHF 500,000 and was over-indebted by more than CHF 11 million at the end of 2001. In October 2002, the parent company Ba[. GmbH] sold Ab[. AG] for CHF 1 to [C. AG] , which held the shares in trust for [Y.] . The appellant was appointed as a board member bound by instructions. The appellant is accused of having, in complicity with [Y.] , misused funds in the amount of CHF 261,488.50, which had been paid by home residents as rental deposits or "residential rights loans," for a clinic project of [Y.] in Munich (misappropriation). Furthermore, he is said to have granted unsecured loans totaling CHF 1,214,585.55 to Ea[. AG] , Eb[. GmbH] , and [F. GmbH] between January and September 2003, although Ab[. AG] was over-indebted (breach of trust in business management). Finally, he is accused of having fulfilled the elements of the offense of mismanagement through this reckless lending and the violation of his duty to prepare an interim balance sheet pursuant to Art. 725 CO.

Considerations

The Federal Supreme Court dismissed the appellant's appeal against the judgment of the Cantonal Court of St. Gallen.

Regarding the misappropriation, the Federal Supreme Court found that the appellant, as a member of the board of directors of Ab[. AG] , was obliged to manage the rental deposits and "residential rights loans" paid by the home residents in a fiduciary manner. By using these funds for the clinic project of [Y.] , he committed misappropriation. The appellant acted intentionally and with the intention of enriching, in particular, [Y.] .

Regarding the breach of trust in business management, the Federal Supreme Court stated that the appellant, as a member of the board of directors, was obliged to protect the interests of Ab[. AG] . Instead, he granted loans to the companies controlled by [Y.] without…