Defence in insolvency-related offences — simple and fraudulent bankruptcy, fraudulent management, embezzlement, suspicious disposals — on the intentional element that separates commercial failure from a criminal act.
A business can fail for a thousand legitimate reasons — the market, the economic context, management decisions that proved wrong. Insolvency, in itself, is not a crime. It becomes criminal only when accompanied by intentional conduct to defraud creditors: concealing or falsifying records, removing assets, disposals meant to empty the company of value.
This distinction is the heart of the defence. The prosecution sometimes tends to read retrospectively the decisions of a director of a company in difficulty as if they had been, from the outset, fraudulent manoeuvres. Yet a risky business decision, a preferential payment made in good faith or a genuine attempt to save the company are not, in themselves, criminal acts.
The defence starts from reconstructing the real context in which the decisions were taken — a ground on which experience in running businesses and an understanding of financial flows matter as much as the legal argument.
Falsifying, removing or destroying records, concealing assets to the detriment of creditors. The defence focuses on the intentional element — the fraudulent manoeuvres — without which the offence does not exist.
Failing to file, or filing late, the insolvency request beyond the legal deadline. The defence concerns the causes of the delay and the absence of bad faith.
Causing loss through the defective, bad-faith management of another's assets. The distinction from a mere wrong managerial decision is essential.
Appropriating or using the company's assets for one's own benefit, suspicious disposals in the period before insolvency. The defence concerns the reality and economic justification of the operations.
In all of them, the dividing line is the same: intent. Demonstrating good faith and the economic rationale of the decisions separates the honest but unlucky director from the one who defrauded.
In insolvency-related cases, a significant part of the defence is built on procedure — ground that a lawyer with real business experience reads differently from one who sees only the criminal side.
Where insolvency proceedings and criminal proceedings overlap, insolvency law operates as the special law in relation to criminal and criminal-procedure law, which remain the general law. From this relationship arise many exceptions and nuances useful to the defence — concerning the moment the procedure opens, the powers of the insolvency bodies, and the regime of the company's acts and assets — which can be identified and used by someone who commands both fields with precision. These are distinctions usually learned through long business practice, not from a textbook alone.
When criminal action is brought, for the same or connected facts, against both the company and its legal representative, the law requires the legal person to be represented by a distinct mandatary — precisely to avoid a conflict of interest. That mandatary must ensure a concrete and effective defence, not be a mere stand-in for the director. Where this mandatory rule is disregarded — especially when the director of the accused company is himself a defendant — the question of unlawful representation arises, which can lead to the nullity of the acts and the reopening of entire stages of the investigation or the trial.
Such exceptions do not change the substance of the alleged facts, but they can completely reset the procedural framework in which the case is tried — which is why they are worth examining from the earliest stages of the file.
Insolvency-related offences frequently overlap with civil actions attracting the director's liability for the company's liabilities. The criminal charge and the request to cover the company's debts from one's own wealth can run in parallel, feeding each other.
This is why the defence in a criminal insolvency file cannot ignore the asset side: what is alleged criminally directly influences personal exposure in the insolvency procedure, and vice versa. A coordinated strategy across the two levels is essential to protect both the freedom and the wealth of the director.
No. Insolvency is, in itself, a normal business risk, not a crime. It becomes criminally relevant only if it was accompanied by intentional acts to defraud creditors — concealing records, removing assets, fraudulent disposals.
A director who ran the company in good faith and failed for economic reasons has not, by that mere fact, committed a crime.
In certain situations, yes. Where the accused company was not lawfully represented — for instance through a mandatary who should have been appointed separately but was not, or who was in fact the same person as the accused director — the acts drawn up in this way may be void.
The consequence does not concern the substance of the charge, but the procedural framework: entire stages of the investigation or the trial may be reopened. These aspects are best examined as early as possible, since some objections must be raised by a certain procedural moment.
It can be analysed, but it is not automatically a criminal act. Preferential payments and certain operations in the period before insolvency are examined, but intent and context matter: a payment made in good faith, in a genuine attempt to keep the company running, is different from one made to defraud the other creditors.
Reconstructing the context of the decision is decisive here.
This distinction is exactly the ground of the defence. Fraudulent management presupposes bad faith — managing with the intent to cause harm. A managerial decision that proved wrong, but taken in good faith and in a context that justified it, does not meet the subjective element of the offence.
Demonstrating the business reasoning behind the decision, with the documents and context of the time, is how such a charge is rebutted.
Yes, and the two are often linked. In parallel with the criminal file, the action attracting the director's liability for the company's liabilities can be triggered, targeting personal wealth directly. The strategy must manage both levels in a coordinated way — the criminal defence and the one on asset liability.
An early assessment establishes whether the intentional element the law requires exists, how the context of the decisions is reconstructed and how to protect, simultaneously, your freedom and your wealth.