Commentary on Judgment Cass. pen., Section V, no. 36585 of 2024: Liability for Fraudulent Bankruptcy
The judgment of the Court of Cassation of October 2, 2024, no. 36585, offers important food for thought on the liability of directors in cases of fraudulent bankruptcy. In this case, the director of a construction company was convicted for failing to fulfill her tax and social security obligations, accumulating a debt that led to the company's bankruptcy. The Court rejected the appellant's appeal, confirming criminal liability for the offense under art. 223 of the bankruptcy law.
Directors' Liability
The Court clarified that, to establish fraudulent bankruptcy, it is not necessary for there to be a direct intention to cause bankruptcy. It is sufficient to demonstrate that the fraudulent acts contributed to creating a foreseeable state of insolvency. In particular, these acts may include:
- Systematic omission of tax and social security obligations;
- Accumulation of debts towards social security institutions and the tax authorities;
- Management decisions that harm the economic health of the company.
In the presence of a "double conformity" even in the reasoning process, the appellate judge is not required to conduct an in-depth analysis of all the parties' arguments.
The Court's Reasoning
The Court of Cassation stated that the prolonged failure to fulfill tax and social security obligations by the director constitutes fraudulent conduct, as it increased the company's debt exposure and made its insolvency foreseeable. It was highlighted that the omission is to be considered an integral part of the fraudulent acts, thus confirming the director's liability. The jurisprudence has reiterated that awareness of undertaking actions that are dangerous for the economic health of the company is sufficient to establish intent.
Conclusions
Judgment no. 36585 of 2024 highlights the importance of due diligence by directors in managing company finances. It is crucial for managers to be aware of the consequences of their management choices, especially in a context of economic crisis. Decisions that may seem advantageous in the short term can lead to serious liabilities in the long term, as demonstrated by this case. Directors must always act in compliance with current regulations to avoid incurring criminal and civil sanctions.
