Fraudulent Bankruptcy: Commentary on Judgment Cass. pen., Section V, no. 37159 of 2024

The judgment of the Court of Cassation, Fifth Criminal Section, no. 37159 of October 9, 2024, represents an important step in the context of fraudulent bankruptcy offenses. In this decision, the Court upheld the conviction of two directors of a bankrupt company, emphasizing the importance of responsibility in corporate management and the duty to protect creditors' interests.

Facts of the Case

The case concerned A.A. and B.B., who held the positions of sole director and de facto director, respectively, of LUBIAN Srl, a company declared bankrupt. The Court of Appeal of Milan had confirmed the first-instance conviction for fraudulent bankruptcy, highlighting their responsibility in the misappropriation of assets belonging to the bankrupt company. In particular, it was ascertained that A.A. had signed a notarial deed for the transfer of assets without payment of the price, while B.B. was described as the "factotum" of another individual, C.C., considered the mastermind of the company.

Legal Principles and Court's Reasoning

The judgment reiterates that responsibility for fraudulent bankruptcy is linked not only to the act of misappropriating assets but also to conscious participation in the fraudulent operation.

The Court rejected the appeals filed by the two defendants, deeming the grounds presented insufficient to demonstrate an error in the assessment of facts by the lower courts. In particular, A.A.'s first ground of appeal was considered unfounded, as the Court clarified that the assessment of responsibility falls within the purview of the trial court, not the Court of Cassation. The second ground, concerning mitigating circumstances, was declared inadmissible, as A.A. did not provide new evidence to support his claim.

Similarly, the Court dismissed B.B.'s appeal, emphasizing how the subjective element of the offense of documentary fraudulent bankruptcy had been adequately proven through the evidence gathered. The Court referred to previous case law to highlight how the concealment of accounting records constitutes an independent act separate from the mere keeping of such records, requiring specific intent to prejudice creditors.

Implications and Final Considerations

This judgment sheds light on several fundamental aspects of directors' liability in companies. Directors must be aware of their actions and the consequences that may arise from unlawful conduct. The Court of Cassation reiterated that the principle of responsibility requires directors to act in the best interests of the company and its creditors, avoiding conduct that could harm these interests.

• Importance of awareness in business decisions.
• Reflection on the balance between corporate management and creditor protection.
• Need for proper accounting and transparency in management.

Conclusions

In conclusion, judgment no. 37159 of 2024 serves as an important reminder to company directors, highlighting the legal consequences of their actions and the centrality of responsibility in corporate management. The Court of Cassation has demonstrated its rigor in protecting creditors' interests and punishing fraudulent conduct, thereby contributing to the stability of the economic system.