In an earlier blog series we took you through the position and tasks of the director of a BV We also paid attention to civil-law personal liability and how to prevent it . In a new series we discuss the criminal liability of the director for committing bankruptcy fraud. At the end of the series, the role of the trustee who identifies bankruptcy fraud is also discussed.

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Bankruptcy fraud, what exactly is it?

It is not a legal concept, but we often use the term fraud as a collective term in everyday speech when it comes to deception committed by falsifying records. Bankruptcy fraud therefore refers to – the word says it all – fraud prior to – or during a bankruptcy. We therefore speak of prejudice to the bankruptcy estate .

The Criminal Code regulates which actions constitute a criminal offense (also known as a crime ). The Penal Code contains a chapter on the detriment of creditors or entitled parties. This chapter deals with the offenses that fall under bankruptcy fraud. However, there are more criminal offenses associated with bankruptcy fraud.

Bottled the boo(de)l?

In the coming blogs we will deal with various bankruptcy offenses to inform you as a director about when your conduct is or could be punishable. The following criminal offenses are covered:

1. Disadvantages of creditors by directors of bankrupt BVs
2. Forgery
3. Eclipse
4. Bottle puller
5. Intentional laundering

In each blog we explain the meaning of one of the above offenses using examples from case law. We also explain which requirements actions must meet in order to be punishable. For example, must there be intent or is science sufficient?

Questions already?

Is your company in dire straits and do you want to avoid committing acts that may later turn out to be punishable? Then please contact us. We are also happy to assist you if you are suspected of bankruptcy fraud.

Can mediation during a WHOA process increase the chance of success?

On 1 January 2021, the Private Agreement Homologation Act (WHOA) entered into force. This law offers companies in financial difficulties a new instrument to restructure debts. In the WHOA and parliamentary history, no attention is paid to mediation, while numerous points of disagreement can arise during the negotiation of an agreement.

In an article for Sdu’s Magazine Financing, Security and Insolvency Law Practice, Marie-Hélène Berghuijs and I investigated whether mediation and the use of mediation skills by a restructuring expert or observer can be of added value to prevent or settle disputes in a WHOA process. You can read our conclusions here .

Questions?

Do you have questions about this topic? Please feel free to contact us.