Edited by Barry Rider
When a company or an individual is subject to a formal insolvency procedure, the affairs of the company, or the individual, will often be investigated. Depending on the outcome of those investigations, claims or enforcement action relating to misconduct may be brought against directors of a company or those in some way involved with the company or, in the case of personal insolvency, the bankrupt individual. Most actions arising out of insolvencies are civil in nature and any recoveries made will generally benefit the creditors of the company or the bankrupt individual. However, there are also a number of offences which carry criminal liability. In this chapter, with help from K & L Gates LLP colleagues worldwide, we provide a high-level overview of insolvency-related criminal offences in a sample of jurisdictions across the globe, primarily in the corporate sphere. Both corporate entities and individuals can be subject to English law insolvency-related offences. The main corporate insolvency-related criminal offences can be found in Chapter 10 of Part 4 of the Insolvency Act 1986 (“IA86”) entitled “Malpractice before and during Liquidation; Penalisation of Companies and Company Officers; Investigations and Prosecutions”. These offences are fraud in anticipation of winding up, transactions in fraud of creditors, misconduct in the course of winding up, falsification of company’s books, material omissions from a statement relating to a company’s affairs, false representations to creditors, fraudulent trading and contravention of the restriction on the re-use of company names.
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