Conviction of the Managing Director for Negligent Improper Maintenance of Business Records

Facts

The appellant [X.L.] was the Managing Director of [Y. AG] . The Zurich Debt Collection Office repeatedly requested him and the company's Board Member to submit the annual financial statements, which did not occur. It was not until November 1997 that [X.L.] commissioned a fiduciary to prepare the 1995 and 1996 annual accounts, which were then completed on 2 February 1998. The District Court of Rheinfelden subsequently convicted [X.L.] of negligent improper maintenance of business records pursuant to Art. 325(1) SCC for the 1996 financial year, imposing a fine of 150 Swiss francs. The High Court of the Canton of Aargau dismissed the convicted party's appeal.

Considerations

The Federal Supreme Court upheld the judgment. It stated that Art. 325 SCC constitutes a genuine offence of omission, which serves to enforce the accounting obligations under the CO. The accounting obligation continues even after the expiry of the 6-month balance sheet submission deadline, until the obligation to act ceases. The statute of limitations for prosecution therefore only begins on the day the unlawful conduct ends.

In the present case, the appellant as Managing Director had the obligation to prepare annual accounts no later than 6 months after the end of the 1996 financial year. Since the accounting records were only…