Last day 1 2015 July Penal Code reform introduced by the Organic Law 1 / 2015 31 of March it came into force, introducing, among other issues, some of which may have a great impact on those companies end up filing creditors contests annual accounts or are insolvent.
Thus, with respect to Companies currently or imminently insolvent, the reform of the Penal Code introduces a series of behaviors that are expressly classified as criminal, including:
- Formulating creditors contests annual accounts or ledgers contrary to the rules governing commercial accounting mode, so that it is difficult or impossible examination or assessment of the actual economic situation of the debtor, or breach of duty to formulate the balance or inventory within term.
- Breach of legal duty to keep accounting, double accounts are held, or committed in its keeping irregularities that are relevant.
- Destruction or alteration of the books, when obstruct or impede relevantly understanding of their equity or financial situation.
- Concealment, destruction or alteration of documentation that the employer is required to keep before the expiry of the deadline to extending this legal duty, when so it is difficult or impossible examination or assessment of the actual economic situation of the debtor.
Importantly, with this extensive classification of cases the legislator is opening the ban on the possibility of urging proceedings and claims against directors of insolvent companies which had makeup annual accounts or well had not complied with its formal obligations on time legally established, a situation very common in practice.
In addition, it must be taken into account that the above situations may entail the criminal liability of administrators not only for fraudulent actions but also cases of recklessness, as well as being prosecutable even if the Company is not in bankruptcy, it being enough that the debtor has left to regularly meet their payment obligations.
Finally, it is also important to note that pursuit is independent of possible bankruptcy process, so that it may proceed without waiting for the conclusion of bankruptcy, nor the outcome.
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Marcos Jimenez de Parga