Insolvency offence as a trade exclusion: assess access after conviction

Section 13(1) GewO addresses natural persons for this type of exclusion. It refers to a criminal conviction and to the absence of expungement. The term “fraudulent bankruptcy” is often used broadly in everyday language. The trade review must identify the exact offence established by the judgment.

The provision expressly includes, among others, fraudulent bankruptcy, harm to foreign creditors, favouring a creditor and grossly negligent impairment of creditor interests under sections 156 to 159 of the Criminal Code. Section 13(1) point 1(a) GewO also lists the offences under sections 153d and 153e of the Criminal Code stated there.

The review therefore starts with the judgment. An economic crisis may explain the background to proceedings, but it does not establish that a listed criminal offence has been committed.

For the offences listed in section 13(1) point 1(a) GewO, the review focuses on the classification of the criminal conviction and on whether it has been expunged. A general description as an insolvency offence is not enough. The judgment must be compared with the statutory list.

For another criminal offence, section 13(1) point 1(b) GewO sets separate thresholds. The exclusion there requires imprisonment for more than three months or a fine of more than 180 daily rates. The type of penalty, its level and the exact offence must therefore be taken from the judgment.

These thresholds answer a different question from the classification of the specifically listed insolvency and creditor-related offences. The file should show both lines separately so that the penalty for another offence is not confused with the statutory list.

Insolvency proceedings describe an economic position or a procedural route. Section 13(1) GewO requires a criminal conviction for the exclusion addressed here. An insolvency petition without a criminal judgment therefore does not by itself create this exclusion.

The same applies to an unpaid claim or a dispute about repayment. Those issues may have civil-law or insolvency-law consequences. They must be kept separate from the question whether a natural person is excluded from a trade because of specific criminal conduct.

The person also matters. The provision discussed here concerns natural persons. A trade application should therefore identify who is to hold the trade and which conviction the authority is being asked to assess.

Section 13(1) point 2 GewO adds the requirement that the conviction has not been expunged. The age of a judgment alone does not provide a reliable answer. The expungement status must be checked against official documents and the judgment.

The first file should therefore contain the date of the decision, its finality, the exact penalty and a current criminal record. Differences between older records and a current extract must be clarified before drawing a conclusion about the trade licence.

Expungement is its own review line. It must not be equated with the end of insolvency proceedings, a discharge from debts or the mere passage of time since an economic crisis.

For the first legal review, obtain the complete criminal judgment, proof that it is final and a current criminal record. The file should also contain the planned trade, the identity of the person applying and the intended application.

Order the documents under three questions: offence, statutory threshold and expungement. Record which sentence in the judgment describes the offence, which penalty was imposed and which document proves the expungement status. This keeps established facts separate from open points.

The article Debtor insolvency petition concerns preparation of insolvency proceedings and addresses a different question. The article on debt relief proceedings and discharge also does not automatically answer whether a criminal conviction still bars a trade under section 13(1) GewO.