The most important facts at a glance
- Limitation periods vary depending on the offense: Simple balance sheet falsification is time-barred after 5 years
- The beginning of the limitation period is decisive: the period generally begins when the offense is completed, not when it is discovered - in the case of accounting offenses, this is often the time of publication or use
- Interruption and suspension extend time limits: The limitation period can be interrupted, which restarts the limitation period
Why the statute of limitations for accounting fraud is existential
The question of the statute of limitations in cases of balance sheet falsification is of concern to many entrepreneurs, managing directors and board members. It is not only about the consequences under criminal law, but also about the personal and economic future of those affected. The manipulation of balance sheets, whether out of economic necessity, overestimation of one's own situation or deliberate intent to deceive, has far-reaching consequences.
Statutory limitation periods in criminal law serve to ensure legal peace and legal certainty. Once these periods have expired, no further prosecution may take place. However, the time limits for accounting offenses are complex, as various facts can apply and the start of the limitation period is not always clear. In addition, interruptions and the suspension of the statute of limitations can significantly extend the actual prosecution period.
Legal basis: The statute of limitations system in German criminal law
General statute of limitations according to §§ 78 ff. of the StGB
The criminal statute of limitations is regulated in Sections 78 to 78c StGB. It means that prosecution is barred after the expiry of certain time limits. The length of the limitation period depends on the severity of the offense, specifically on the penalty range of the respective offense.
Incorrect presentation,§ 331 HGB
§ Section 331 of the German Commercial Code (HGB) is the central criminal offense for falsification of financial statements under commercial law and is specifically directed against persons who are responsible for accounting in corporations. The offense covers the incorrect representation or concealment of the circumstances of the corporation in various documents.
Protected documentsThe offense covers not only the annual financial statements, but also the bookkeeping, the management report and, in the case of groups, the consolidated financial statements and group management report. Interim reports and preliminary financial statements may also be covered if they must meet the statutory requirements.
OffensesThe standard distinguishes between two types of offense: misrepresentation and concealment. In the case of misrepresentation, actual circumstances are misrepresented - for example by valuing assets too high or liabilities too low. In the case of concealment, true facts are presented in such a way that an accurate picture of the net assets, financial position and results of operations is not recognizable, without individual statements having to be objectively false.
Objective factsThe presentation must be objectively incorrect or have a disguising effect. Criminal liability is ruled out if the chosen accounting method is within reasonable valuation principles, even if other approaches would be preferable.
Subjective factsSection 331 HGB requires intent, whereby conditional intent is also sufficient. The perpetrator must know and want the circumstances to be misrepresented or concealed.
Legal consequencesThe penalty is a prison sentence of up to three years or a fine. In practice, fines are imposed more frequently than custodial sentences, unless there are particularly serious cases with considerable damage. In addition to the penalty, there is the threat of professional consequences such as dismissal from board positions and civil liability claims.
Why the statute of limitations is particularly important in cases of balance sheet fraud
The special feature is that there are often considerable periods of time between the commission of the crime and its discovery. Whereas in the case of theft, the crime is usually noticed immediately, an incorrect balance sheet can initially remain undetected and only come to light years later as a result of economic developments or external audits.
This means for those affected: The question of the statute of limitations often determines whether criminal prosecution is still possible at all. A precise calculation of when the statute of limitations begins and what interruptions have occurred can make the difference between years of investigations and immediate discontinuation of proceedings.
Statute of limitations for simple balance sheet falsification
Simple balance sheet falsification in accordance with Section 331 HGB is subject to a limitation period of five years. The period begins with the completion of the offense.
The question of whether the accounting offense is connected to other economic crimes is particularly important. A limitation period of five years applies to most economic offenses.
We comprehensively examine which limitation periods apply in your case and which defense strategy can be developed on this basis. In doing so, we also take into account possible interruptions or suspensions of the limitation period.
Interruption of the statute of limitations according to § 78c StGB
The statute of limitations can be interrupted by certain investigative acts. According to Section 78c StGB, every judicial hearing or seizure, every filing of a public action, every opening of the main proceedings and every pronouncement of a judgment leads to an interruption.
The following acts of interruption are particularly relevant for balance sheet offenses:
- Search of the business premises or home
- Confiscation of business documents and data carriers
- Formal questioning as a defendant
- Arraignment
The limitation period begins to run anew with each interruption. This means that the limitation period can practically be delayed for many years by repeated investigative measures.
Checklist: Statute of limitations for balance sheet falsification
Immediate review of allegations:
- What specific facts are alleged?
- How long ago was the respective financial year?
Calculation of the start of the limitation period:
- Delineate multiple acts at different times
- Determine the start of each individual offense separately
Check interruptions:
- When did which investigative measures take place?
- Were searches carried out? When were they carried out?
- When was the interrogation as a defendant?
- Were charges brought? When?
- Have the main proceedings been opened? When?
- Is there a judgment? When was it pronounced?
Calculate absolute limitation period:
- Observe the absolute limitation period pursuant to Section 78c (3) sentence 2 StGB
- Note possible interruptions to the limitation period
- Has the absolute limitation period been reached?
Consider reasons for suspension:
- Are legal proceedings already underway?
- What effect does the suspension have on the overall time limit?
Statute of limitations as a complex legal issue with far-reaching consequences
The statute of limitations for accounting fraud is a complex matter that requires in-depth legal knowledge. It is crucial for those affected to be able to understand the limitation period for accounting fraud. An incorrect assessment can lead to far-reaching consequences.
Are you facing allegations of accounting fraud or would you like to clarify your legal situation? We have many years of experience in complex white-collar criminal proceedings and the combination of criminal law and IT law. Contact us for a sound initial assessment of your situation.
Frequently asked questions
Simple balance sheet falsification in accordance with Section 331 HGB is time-barred after 5 years. The period generally begins with the adoption of the incorrect balance sheet by the responsible body.
If the statute of limitations expires during an ongoing investigation, the proceedings must be discontinued. An indictment that has already been filed is terminated by the court's order to discontinue the proceedings. However, acts of interruption during the investigation can cause the limitation period to start running again, meaning that the limitation period often only expires after a longer period than the original limitation period.
A reliable calculation of the limitation period requires sound legal knowledge. You must determine the exact facts of the case, determine the start of the limitation period, know all interrupting acts and take into account the suspension of the limitation period. Even small errors can lead to incorrect assessments. Sound advice from a specialist criminal defence lawyer is therefore strongly recommended.
If the limitation period is interrupted, it begins to run again in full. After each interruption, the full period starts again from the beginning. In the case of suspension, the limitation period is merely paused and continues to run from the point at which it was interrupted once the reason for suspension has ended.
In addition to the limitation period under criminal law, there are separate limitation periods under civil law. According to Sections 195 and 199 of the German Civil Code (BGB), claims for damages in tort are generally time-barred 3 years after knowledge of the damage and the injuring party. Criminal prosecution and civil liability are legally independent of each other. Even if the criminal offense is time-barred, civil law claims may still exist or vice versa.
Contact a specialist criminal defence lawyer immediately for a detailed examination of your situation. Do not make any premature statements to the investigating authorities in the hope that you can wait for the statute of limitations to expire - your statements could open up new avenues of investigation. Have it checked whether the statute of limitations has actually expired or will expire and develop a strategy for dealing with the proceedings together with your lawyer.
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