Federal Supreme Court, 03.12.2026, 6B_481/2025, 6B_491/2025
Facts
A.A. and B.A. were the partners and managers of C.________ GmbH. They also managed another company, D.________ GmbH, through which they billed management fees to C.________ GmbH. On February 4, 2019, they transferred 42,810.75 CHF from the C.________ GmbH account to the D.________ GmbH account as payment for these fees. On the same day, they declared C.________ GmbH insolvent and filed for bankruptcy. After being acquitted at first instance of all charges, including favoring a creditor (Art. 167 of the Swiss Criminal Code), they were convicted of the latter offense by the High Court of the Canton of Zurich following an appeal by the Public Prosecutor's Office. They are appealing this conviction to the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates the principles governing the offense of favoring a creditor underArt. 167 of the Swiss Criminal Code (SCC). This provision protects the principle of equal treatment of creditors in the context of compulsory enforcement. The offense is typically committed through "incongruent coverage," meaning a payment to which the creditor was not entitled at that time or in that form. Examples cited by law include the payment of a debt not yet due, the payment of a due debt through unusual means (e.g., payment in kind), or the provision of security without being obligated to do so.
Conversely, the payment of a due debt through standard payment methods ("congruent coverage") is generally not punishable. An insolvent debtor is not entirely prohibited from honoring their commitments. Exceptionally, congruent coverage may fall under the general clause of Art. 167 SCC if the act, by its wrongful nature, is equivalent to the legal examples, specifically aims to favor a creditor, and creates a flagrant and unjustified inequality among creditors.
Subjectively, the offense requires intent. For cases of incongruent coverage, conditional intent (dolus eventualis) is sufficient. The perpetrator must be aware that their act creates at least the possibility that one creditor will be favored to the detriment of others. However, for the exceptional cases of congruent coverage, case law requires direct intent ("direkte Absicht"). Conditional intent is insufficient.
Finally, under the law of mandate (Art. 394 of the Swiss Code of Obligations), unless otherwise agreed, fees become due upon completion of the service or a portion thereof, and not merely at the time the invoice is issued.
Application to the Case
The Federal Supreme Court analyzes whether the objective and subjective conditions of Art. 167 SCC are met. Objectively, the disputed payment concerned management fees for services, the last of which was performed on February 4, 2019, the day of payment. In accordance with the law of mandate, the debt was therefore due on that date. The payment was made by bank transfer, which is a standard payment method. This constitutes congruent coverage that does not correspond to any of the typical examples under Art. 167 SCC. The Federal Supreme Court also finds that the general clause is not applicable, as the act is not equivalent in gravity to cases of incongruent coverage. The appellants did not resort to legal maneuvering to trigger the maturity of the debt.
Alternatively, regarding the subjective element, the Federal Supreme Court notes that the lower court only established conditional intent on the part of the appellants. However, as this involves congruent coverage, case law requires direct intent for the offense to be established. Since this condition is not met, the subjective element of the offense is also lacking.
As the objective and subjective conditions for favoring a creditor are not met, the appellants must be acquitted.
Outcome
The Federal Supreme Court allows the appeals, sets aside the judgment of the High Court of the Canton of Zurich, and remands the case to that authority to acquit the appellants and issue a new ruling on costs and legal fees.
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