Failure to keep accounts from a criminal law perspective

If the incumbent obligation for proper bookkeeping and storage of business books is violated, the guilty person can be punished with imprisonment of up to three years or a fine.

According to StGB 166, a debtor who breaches the legal obligation to properly maintain and store business books or to prepare a balance sheet, so that his financial status is not or not fully visible, when bankruptcy has been declared over him or in a seizure according to SchKG 43 a loss certificate has been issued against him, will be punished with imprisonment for up to three years or a fine.

As a perpetrator pursuant to StGB 166, only the debtor is considered. Therefore, members of the auditing committee, for example, are not included. The debtor must also be capable of declaring bankruptcy. This is already evident from the objective condition of criminal liability, which requires that bankruptcy must have been declared over the debtor or, exceptionally, a loss certificate must have been issued due to a seizure according to SchKG 43. In addition, the perpetrator must be obligated to maintain books. This is the case, for instance, for a sole proprietor (owner of a sole proprietorship), provided he must register in the commercial register. The conduct constituting an offense includes the violation of the bookkeeping obligation. A violation exists if the accounting is entirely omitted, incomplete, defective, or otherwise not properly maintained. The Business Records Regulation (GeBüV) is decisive here. Moreover, the violation can also be in a breach of OR 926 (obligation to maintain business books). In certain cases, the failure to preserve business correspondence alone is punished under StGB 325.

Collecting and storing receipts and documents alone is not sufficient for proper bookkeeping. Rather, the debtor must “continuously make systematic, complete, and clear arithmetic records of business transactions so that the financial position of the business can be determined at any time just by drawing up the balance sheet” (BGE 77 IV 166).

Insufficient or even omitted bookkeeping must always result in the debtor's financial position not being fully or at all visible. The perpetrator must act with intent in view of the violation of the bookkeeping obligation and the resulting insufficient overview of his financial situation as well as the concealment of the financial status, i.e., with knowledge and will.

If the accounting is complete but intentionally incorrect, the perpetrator is exclusively guilty under the stricter criminal provision of forgery of documents (StGB 251).