Fraudulent Bankruptcy: Analysis of Supreme Court of Cassation Judgment, Section V, No. 36856 of 2024

The recent judgment of the Supreme Court of Cassation, Section V, No. 36856 of 2024, provides a clear interpretation regarding fraudulent bankruptcy, with particular attention to the conduct of misappropriation and dissipation of company assets. The central issue concerns the liability of directors of bankrupt companies and the ways in which they can be held guilty of bankruptcy offenses.

Context of the Judgment

The Supreme Court of Cassation examined the case of A.A. and B.B., accused of fraudulent bankruptcy in relation to the management of "Faber Beach Srl". The appellants argued that the contested operations did not constitute a misappropriation of assets, as the payments made by bank transfer were directed towards satisfying pre-existing debts. However, the Court reiterated that the crime of fraudulent bankruptcy by misappropriation exists when there is a removal of assets from the company's patrimony without adequate consideration.

According to established case law of the Court of Cassation, any operation aimed at detaching assets from the company's patrimony without introducing consideration constitutes the crime of fraudulent bankruptcy by misappropriation.

Legal Principles Cited

The Court cited numerous previous judgments that clarify the distinction between fraudulent bankruptcy by misappropriation and dissipation. In the former, the act of impoverishment is aimed at removing assets from the company's patrimony, while in the latter, it involves a distorted use of the assets themselves. It was emphasized that the conduct of misappropriation does not necessarily require the company to be in a state of insolvency at the time of the act.

• The misappropriation of assets must result from operations without any benefit to the company's patrimony.
• Dissipation implies imprudent and incongruous choices with respect to business needs.
• Operations must be evaluated not only in their formal aspect but also in their economic substance.

Conclusions and Final Reflections

Judgment No. 36856 of 2024 represents an important reminder of the responsibility of directors and the need to comply with bankruptcy regulations. It highlights how conduct, which may initially appear legitimate, can in reality conceal fraudulent intent. The Court has ordered a reassessment of accessory penalties, emphasizing the need for a fair and proportionate judgment based on the severity of the conduct found.