This includes legal action against third parties, such as the pledger, the surety, the person assisting in concealing assets.
It is important to know that a liquidation procedure may lead to several outcomes, in addition to the company being dissolved without legal successor, so we recommend that the contract should include safeguards to facilitate voluntary performance (surety, security deposit, earnest money, penalty, forfeiture clause, bank guarantee).
The liquidator has a duty to report a crime if he finds that a (former) executive officer or (former) member has committed a criminal offence against the company. The most typical of these criminal offences are bankruptcy fraud, budget fraud, violation of the order of accounting, fraud, embezzlement and misappropriation.
The Law Firm also provides legal representation in liquidation proceedings and in the pre-insolvency litigation period, whether it is a creditor's claim or protecting the rights of the debtor (company, executive officer or member).
On behalf of the creditor or debtor, the liquidator may also bring an action for a declaration of underlying liability under the relevant section of the Bankruptcy Act if he or she finds that the directors of the entity have not carried out their duties (such as their operational management activities) in the three years preceding the commencement of the liquidation with due regard to the interests of creditors. It is also not excluded that liability may be transferred to the private assets of the former managing director, if his or her behaviour or intention to extract assets can be proven.
An inherent feature of an action for a declaration is that the court with jurisdiction may be asked to declare the invalidity of contracts previously concluded, in which case the third party contractor may also suffer damages, giving rise to a new claim under the law of obligations.
Of course, there are legal options to remedy liquidity problems in a situation of impending insolvency as well as before, and from a creditor's perspective, the timing of the application for liquidation is not negligible, taking into account the fact that there is a time limit for filing a petition before the liquidator.
In addition to possible civil and criminal penalties, the Tax Authority may also impose sanctions; and it is also not uncommon that tax default – and therefore the imposition of tax penalty and default fine – established in a tax administration procedure generates a situation of insolvency or threatened insolvency.
The legal representation of the debtor company includes the liquidation proceedings, but also, prior to that, the administration of claims, any related proceedings for the determination of the underlying liability of the managing director, and any criminal proceedings, including any tax administration proceedings and any proceedings for the conclusion of a settlement (bankruptcy, liquidation). We also represent our Clients in winding-up proceedings and in bankruptcy proceedings.
The Law Firm works with a number of reliable and excellent forensic tax, contribution and accounting experts.
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