Articles 163 to 167 of the Criminal Code (hereinafter: PC), i.e. offences committed in bankruptcy and debt collection, all presuppose the existence of a declaration of bankruptcy or the issue of a certificate of default as an objective condition of punishability. This is the case for fraudulent bankruptcy and fraudulent seizure (Art. 163 StGB), the effective reduction of assets to the detriment of creditors (Art. 164 StGB), mismanagement (Art. 165 StGB), the violation of the obligation to keep accounts (Art. 166 StGB) and advantages granted to certain creditors (Art. 167 StGB).
With regard to the declaration of bankruptcy as an objective condition of punishability, the doctrine was divided on the question of whether the judicial dissolution of a company and its subsequent liquidation in accordance with the provisions applicable to bankruptcy in the event of organisational defects in the company within the meaning of Art. 731b para. 1bis of the Swiss Code of Obligations (hereinafter: CO) could fulfil this objective condition of punishability.
End of the controversy
In particular, the majority of legal scholars considered that this was not the case, in particular because of the principle of legality that prevails in criminal law. However, two minority opinions were of the opposite opinion, considering that the objective condition of punishability mentioned above was fulfilled in the case of the liquidation of a company based on Art. 731 para. 1bis no. 3 OR.
In its decision 6B_562/2021 of 7 April 2022, the Federal Supreme Court put an end to this doctrinal controversy by considering that in the case of a liquidation based on Art. 731 para. 1bis No. 3 CO, the objective condition of punishability of Art. 163 ff. is not fulfilled, thus agreeing with the majority opinion.
Different solution in the case of bankruptcies
In this judgment, the Federal Supreme Court examines the mechanism provided for in Art. 33 of the Banking Act (hereinafter: BL) (concerning bank bankruptcy), for which it had considered that the opening of bankruptcy on the basis of this provision fulfilled the objective condition of punishability of Art. 163 to 167 of the Swiss Penal Code (BGE 144 IV 52, para. 7.5). The Federal Court considers that the case of Art. 731b para. 1bis no. 3 CO is different from Art. 33 BL since the latter provision presupposes a risk of insolvency (Art. 25 para. 1 let. c BL), which is not the case for a dissolution and the subsequent liquidation of organisational defects.
Marie Besse, Mazou Avocats