Combating abusive bankruptcy - MKY GROUP
Combating abusive bankruptcy: New regulations from January 1, 2025
From January 1, 2025, new regulations will come into force to prevent abusive bankruptcy proceedings. These measures aim to close loopholes in bankruptcy law and ensure that companies meet their financial obligations.
The upcoming legislative amendments concern several pieces of legislation, including the Code of Obligations (**OR**), the Federal Debt Collection and Bankruptcy Act (**SchKG**), the Criminal Code (**StGB**) and the Federal Direct Federal Tax Act (DBG). A significant change is that in future, the costs of bankruptcy proceedings will be imposed on the debtor in order to make it more difficult to misuse the proceedings. In addition, these changes result in adjustments to the Commercial Register Ordinance (**HRegV**) and the Ordinance on the Vostra Criminal Records Information System (**StreV**).
Debt collection of public sector receivables
Art. 43 (1) SchKG (which states that bankruptcy collection is excluded from public claims) will be repealed as of January 1, 2025. This means that public claims (such as tax claims, social security contributions, etc.) will be carried out in accordance with the general rules of bankruptcy from 2025, provided that the debtor is entered in the commercial register.
Search for persons in the commercial register (936a OR)
On the website of the central company index (Zefix), personal data will be linked with the company's data in the future. This makes it possible to publicly see in which legal entity and function a person is or was registered in the commercial register. This measure is intended to uncover patterns of conduct and **have a deterrent effect on persons which** repeatedly induce bankruptcy proceedings**.
Nullity of shell trading in the Code of Obligations (685a OR)
Shell companies, i.e. factually dissolved companies without operational activities, will be included in the Code of Obligations from January 1, 2025. The transfer of shares or common shares of such companies is void if the company has been liquidated and disbanded without prior dissolution. This is intended to prevent trade with such companies.
Control of shell trade by the commercial register office (Art. 67a para. 2 StGB (SR 3110))
The Commercial Register Ordinance is amended so that commercial registry offices must request the annual financial statements of the company concerned if there is suspicion of shell trading. If the commercial register office finds that the company is over-indebted and has no business activity or usable assets, registration is refused.
Retrospective opting-out is no longer possible (Art. 727a para. 2 OR)
Companies with less than ten full-time employees have so far been able to dispense with a limited audit with the consent of all shareholders. From January 1, 2025 **this waiver only applies for the next fiscal year**, no longer retroactively.
Increased cooperation between authorities (Art. 112 (4) DBG (SR 642.11))
In future, cantonal tax administrations will be required to report to the commercial register offices if a company has not submitted the statutory annual financial statements. This provision is intended to strengthen cooperation between authorities and prevent unaccounted companies from acting to the detriment of their creditors.
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Stricter measures against abusive bankruptcies from January 1, 2025
Disclaimer: The content of this blog post is for informational purposes only and does not constitute professional advice.
Each individual case should be reviewed individually and we recommend that you seek professional advice for specific questions.
