Fraudulent Bankruptcy: Commentary on Judgment Cass. pen., Section V, No. 45230 of 2021

The judgment of the Court of Cassation No. 45230 of 2021 represents an important reference point in matters of fraudulent bankruptcy, clarifying several aspects related to the application of procedural regulations and the conditions for the commission of the crime. The Court confirmed the liability of M. F. for the misappropriation of assets of his sole proprietorship, Evelin Boutique, and addressed crucial issues concerning default and intent in bankruptcy.

The Issue of Notification and Absence in Criminal Proceedings

The first ground of appeal filed by M. F.'s defense concerned the alleged omission of notification of the conclusion of preliminary investigations. However, the Court declared this ground inadmissible, emphasizing that the defense had not raised the issue in the previous stages of the proceedings. This aspect highlights the importance of timeliness and specificity in objecting to procedural defects.

Regulation of Default and Absence

Another crucial point addressed in the judgment concerns the declaration of the defendant's default. The Court clarified that the erroneous application of the rules on default does not lead to nullity, unless there has been a violation of the defense rights provided for the defaulting defendant. The judgment refers to the relevant legislation, such as Law No. 67 of April 28, 2014, highlighting how the incorrect qualification of absence did not prejudice the defense.

The Court of Cassation confirmed that it is not necessary to prove a specific intent to prejudice creditors to constitute the crime of fraudulent bankruptcy by misappropriation.

Proof of the Crime of Fraudulent Bankruptcy

The third ground of appeal concerned the timing of the misappropriation of assets. The defense argued that the removal had occurred before the opening of bankruptcy proceedings. However, the Court reiterated that the existence of the crime of fraudulent bankruptcy by misappropriation does not depend on the awareness of the state of insolvency, but on the will to alter the patrimonial destination of the assets. Jurisprudence emphasizes that intent consists of the conscious will to remove assets from the guarantee for creditors.

• The Court confirmed the defendant's liability for the removal of assets valued at over 113,000 euros.
• The intrinsically fraudulent nature of the conduct was highlighted, which led to the conviction for fraudulent bankruptcy.
• The judgment clarifies that the removed assets cannot be considered insignificant for the purposes of criminal liability.

Conclusions

Judgment No. 45230 of 2021 of the Court of Cassation offers a clear and detailed view regarding the crime of fraudulent bankruptcy and the related criminal procedures. It highlights the importance of the correct application of procedural rules and clarifies that, to constitute the crime of fraudulent bankruptcy, it is sufficient to prove the intent to remove assets, without the need to prove a specific intent to harm creditors. This approach reflects a rigorous application of the law and clear protection of patrimonial guarantees in favor of creditors.