Criminal liability of the management board related to the company's debts

Being a board member brings prestige, influence, and the opportunity to shape the company's development direction. But it also carries a responsibility that, in the event of financial difficulties, can expose the board member not only to creditor claims but also to the attention of law enforcement agencies. Therefore, board members should be aware of the criminal liability they face in connection with their role.

Below – in a nutshell – are the most important regulations that every management board member should know.

CONTENTS:

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Art. 300 of the Penal Code – "siphoning off" property

When the financial situation of the company deteriorates to such an extent that there is a real danger of bankruptcy or insolvency, and board members they begin to transfer (“siphon off”) assets to other entities or persons, they commit an offense under Article 300 of the Penal Code.

This provision penalises preventing or reducing the satisfaction of the creditor, by removing, concealing, selling, donating, destroying, encumbering or damaging company assets. The above-mentioned actions are punishable by up to 3 years' imprisonment, however, if it concerns seized or threatened with seizure – the penalty increases to 5 years. It is worth noting that if the indicated action by a management board member causes damage to multiple creditors, the perpetrator is subject to a prison sentence of 6 months to 8 years.

Art. 586 of the Commercial Companies Code – late bankruptcy petition

The second example of criminal liability of members of the company's management board is a situation in which members of the management board delay in submitting bankruptcy petitionIn accordance with the provisions of the Bankruptcy Law, the debtor is obliged, no later than 30 days From the date on which the grounds for declaring bankruptcy arose, file a bankruptcy petition with the court. If members of the management board of a company for which the grounds for declaring bankruptcy have been updated fail to file a bankruptcy petition within the specified deadline, pursuant to Article 586 of the Commercial Companies Code, they are subject to a fine, restriction of liberty, or imprisonment for up to one year.

Importantly, failure to submit a motion on time is a crime, regardless of whether exceeding the deadline results in damage to the company's creditor or not. Therefore, it is so important to constantly monitor the company's financial condition and, if there are grounds for declaring bankruptcy, immediately submit a motion for bankruptcy.

Art. 296 of the Penal Code – abuse of trust

Management board members, as individuals entrusted with managing the company's affairs, are obligated to make rational business decisions to ensure the company's financial health. In practice, management board members' decisions do not always prove beneficial to the company's finances. Therefore, to ensure proper management and responsible management of the company's assets, the legislator penalizes management board members' behavior that generates significant company debt (caused significant property damage).

Pursuant to Article 296 § 1 of the Penal Code – whoever, being obliged under the provisions of the Act, the decision of a competent authority or a contract to manage the property or business activities of a natural person, a legal person or an organizational unit without legal personality, by abusing the powers granted to him or failure to fulfill his obligation, causes significant material damage to it, is subject to imprisonment from 3 months to 5 years. Criminal liability is aggravated if the perpetrator acts in order to obtain material benefits - the penalty that may be imposed in such a case is imprisonment from 6 months to 8 years.

It is worth mentioning that, pursuant to Article 296 § 5 of the Penal Code, anyone who voluntarily redressed the damage in full before the initiation of criminal proceedings shall not be subject to punishment.

Article 77 of the Accounting Act – accounting under the microscope

In the context of criminal liability of management board members related to the company's debts, it is also worth pointing out that the criminal liability of a management board member may result from unreliable bookkeeping.

Article 77 of the Accounting Act provides for a penalty of up to 2 years of imprisonment (or a fine) if someone allows:

• failure to keep accounting records,
• conducting them contrary to the regulations,
• providing unreliable data in them,
• preparation of financial statements inconsistent with the regulations.

The indicated provision of the Accounting Act very often constitutes an additional basis for criminal liability, appearing as a basis for charges together with other provisions indicated in this article.

Conclusions:

As a member of the company's management board, remember a few things:

1. Monitor the company's liquidity – respond immediately to symptoms of insolvency e.g. by filing a bankruptcy petition in due time.
2. Document decisions – reports, analyses, and business justifications may prove useful in the course of potential criminal proceedings, because thanks to them, you can prove the correctness of your decisions and your innocence.
3. Take care of reliable accounting – the absence of errors in reports is one of the means of protection against criminal liability.
4. Consult with legal counsel and restructuring advisors – If there are grounds to file for bankruptcy, immediately contact a legal counsel or restructuring advisor who will help you resolve your debt problems legally, thus avoiding criminal liability.