Conviction for disloyal management, creditor damage through asset reduction and document forgery

Facts

The complainant [X.] was managing director and board member of [Z. AG] as well as managing director with sole signature and sole board member of [Y. AG] , a subsidiary of [Z. AG] . [Y. AG] had ceased its operational activities as of the end of 2001 and only carried out administrative and liquidation activities. The complainant accepted, on behalf of [Y. AG] , inflated invoices from [Z. AG] and offset the invoice amount against the loan claim of [Y. AG] against [Z. AG] . Furthermore, he cleared two accounts of [Y. AG] and transferred the amounts to [Z. AG] without any commercially justified reason for the payment.

The High Court of the Canton of Zurich found the complainant guilty of disloyal management, creditor damage through asset reduction, and document forgery, and sentenced him to a conditional fine. The High Court also obliged the complainant to pay damages to creditors [A.] and [B.] .

Considerations

The Federal Court examined the application of the principle of accusation and came to the conclusion that the indictment sufficiently defined the subject of the court proceedings. The complainant was accused in his capacity as managing director of [Y. AG] of criminal behavior, whereby he allegedly damaged [Y. AG] to the extent of at least CHF 175,000.--.

The Federal Court also rejected the complaint of violation of the principle of accusation in connection with the conviction for creditor damage through asset reduction. The complainant was found guilty of acknowledging a pretended or inflated claim and not of removing assets.

The Federal Court confirmed the conviction for disloyal management, as the complainant had damaged [Y. AG] through breaches of duty. The offense of disloyal management is an offense of violation, which is fulfilled if the perpetrator, in the position of a managing director, disloyally violates a protective duty to safeguard foreign asset interests and thereby causes damage to the entrusted assets.

The Federal Court also rejected the complaint of violation of Art. 158 SCC, as the complainant had damaged [Y.] …