Fraudulent Bankruptcy: Commentary on Judgment Cass. Pen., Sec. V, no. 28257 of 2023

The recent judgment of the Court of Cassation, Fifth Criminal Section, no. 28257 of June 30, 2023, offers significant insights for understanding the legal challenges related to fraudulent bankruptcy. In particular, the case examined involves M. M., accused of documentary fraudulent bankruptcy during her administration of a company subsequently declared bankrupt. The decision of the Court of Cassation is based on a thorough reflection on the requirements of intent and the responsibility of directors.

Context and Development of the Judgment

The Court of Appeal of Florence had confirmed M. M.'s conviction, excluding the contested aggravating circumstance and setting a sentence of two years' imprisonment. However, the grounds for appeal filed by the defendant emphasized motivational flaws and violations of law, requesting a reassessment of her responsibility. In particular, the defense argued that M. M. had not taken into account the accounting irregularities, attributing the management to third parties.

Intentional responsibility cannot be affirmed based on the mere position held.

Intent in Fraudulent Bankruptcy

A key point emerging from the judgment is the need to prove specific intent in the configuration of fraudulent bankruptcy. The Court reiterated that, for this crime to be established, it is essential to ascertain a conscious conduct aimed at preventing the reconstruction of the company's assets. The judgment highlighted that the mere state of the accounting records is not sufficient to prove the defendant's responsibility; it is necessary to prove the defendant's awareness of the accounting irregularities.

• The distinction between fraudulent bankruptcy and simple bankruptcy is crucial for assessing responsibility.
• The abdication of supervisory duties must be accompanied by the representation of the possibility of fraud.
• The judge must provide adequate reasoning regarding the director's knowledge of the accounting situation.

Conclusion

Judgment Cass. Pen., Sec. V, no. 28257 of 2023, represents an important step forward in jurisprudence on bankruptcy. It clarifies that responsibility for fraudulent bankruptcy cannot be automatic and requires specific proof of intent. This approach not only protects the rights of directors who act in good faith but also reinforces the need for rigorous control in the management of companies. The Court annulled the appealed judgment, remanding the case for a new trial, which offers the opportunity for a more careful evaluation of the evidence and responsibilities.