Delayed filing for insolvency under section 15a InsO
For managing directors and board members, section 15a of the German Insolvency Code (Insolvenzordnung, InsO) is one of the most dangerous provisions, because it attaches to a specific moment: the onset of illiquidity or over-indebtedness. From then a deadline runs to file for insolvency. Anyone who misses it becomes criminally liable, regardless of good intentions and the hope of still rescuing the company. It is that very hope that most often leads into delayed filing.
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Good intentions
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The duty to file.
Section 15a of the German Insolvency Code (Insolvenzordnung, InsO) requires the members of the representative body of a legal person to file for insolvency without culpable delay once the company is illiquid or over-indebted. The two triggers are defined independently: illiquidity means that due payment obligations can no longer be met in substance; over-indebtedness means that the assets no longer cover the liabilities, unless the continuation of the business is predominantly likely. Identifying the exact moment either trigger arose is the heart of the matter.
The deadlines
Once a trigger arises, the filing must be made without culpable delay, and in any event within the statutory maximum periods, which differ for illiquidity and for over-indebtedness. These are outer limits, not a grace period to be used up: a director who could file earlier must do so. Miscalculating the start of the period is the most common way into liability.
Who is liable
The duty falls on the members of the representative body, the managing directors or board members. It can also reach a de facto director, someone who in truth runs the company without a formal appointment. A director cannot escape the duty by pointing to a formal title held by another while actually controlling the business.
The interplay with other offences
Delayed filing rarely stands alone. In the same crisis, the withholding of social security contributions under section 266a StGB and bankruptcy offences under section 283 StGB frequently arise, and payments made after the duty to file has crystallised can trigger personal liability. The crisis is precisely when several exposures converge, which is why early advice matters most exactly then.
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Insolvency delay, briefly explained.
When does the duty to file arise?
Once the company is illiquid or over-indebted. Illiquidity means due payment obligations can no longer be met in substance; over-indebtedness means the assets no longer cover the liabilities, unless continuation is predominantly likely. Identifying the exact moment is the heart of the matter.
What are the deadlines?
Once a trigger arises, the filing must be made without culpable delay, and within the statutory maximum periods, which differ for illiquidity and for over-indebtedness. These are outer limits, not a grace period: a director who could file earlier must do so.
Who can be liable, only formally appointed directors?
The duty falls on the members of the representative body, and it can also reach a de facto director who in truth runs the company without a formal appointment. A formal title held by another does not shield the person who actually controls the business.
This page gives a general overview and does not replace advice on the individual case. Legal position: 2026.
Related pages.
See the wider picture in how a German white-collar case works and our white-collar crime defence.
Is the filing deadline running?
We assess illiquidity and over-indebtedness, the deadline and the exposure, and act before the clock runs out.
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