Analysis of Judgment No. 50447 of 2023: Misappropriation Bankruptcy and the Configurability of the Offense

Judgment No. 50447 of November 9, 2023, issued by the Court of Cassation, addresses a crucial issue in bankruptcy offenses: the configurability of fraudulent bankruptcy through misappropriation of personal assets. This ruling provides important clarifications on the responsibilities of partners in irregular companies and the extension of bankruptcy, elements that deserve in-depth examination.

Context of the Judgment

The Court examined a case where a partner in an irregular company, S. L., had been convicted for aiding his wife, the business owner, in the misappropriation of real estate assets. The central question was whether bankruptcy by misappropriation could be established before the extension of the bankruptcy proceedings to the partner. The Court ruled that such configurability only exists from the moment the bankruptcy was formally extended to the partner himself.

Bankruptcy by misappropriation - Configurability prior to the date identified in the judgment extending bankruptcy to the partner with unlimited liability - Existence - Exclusion - Case. In the context of bankruptcy offenses, the crime of fraudulent bankruptcy through misappropriation of personal assets is attributable to the partner of an irregular company only from the moment bankruptcy has been extended to him. (In application of this principle, the Court deemed correct the conviction for complicity of the defendant who, prior to the extension of bankruptcy to him, had knowingly assisted his wife, the business owner, in the misappropriation of a portion of real estate owned by the latter, while excluding the misappropriative nature of the transfer of the real estate portion exclusively owned by the aforementioned).

Legal Implications

This judgment clarifies a fundamental aspect of case law in bankruptcy law, particularly concerning Article 216 of the Bankruptcy Law. The Court reiterated that, in the absence of a formal extension of bankruptcy, the crime of fraudulent bankruptcy by misappropriation cannot be established. This principle has significant implications for partners in irregular companies, as it limits criminal liability to well-defined and temporal situations.

• The crime of fraudulent bankruptcy by misappropriation is established only after the extension of bankruptcy.
• Criminal liability does not extend retroactively.
• Actions taken before the extension are not criminally relevant.

Conclusions

In conclusion, Judgment No. 50447 of 2023 represents a significant step forward in the regulation of bankruptcy offenses, clarifying the limits of the liability of partners in irregular companies. The Court has provided an interpretation that protects the rights of partners, preventing them from being criminally prosecuted for acts committed before the extension of bankruptcy. This principle will contribute to outlining a clearer and fairer framework for managing responsibilities in the bankruptcy context.