Fraudulent Bankruptcy: Analysis of Judgment Cass. pen., Section V, no. 36856 of 2024

The recent judgment of the Court of Cassation, Criminal Section V, no. 36856 of 2024, serves as an important reference point in the jurisprudence concerning the crime of fraudulent bankruptcy. The court examined the conduct of A.A. and B.B., accused of fraudulent patrimonial bankruptcy for misappropriation and dissipation, partially confirming the lower court decisions but accepting some grounds for appeal. This article aims to analyze the main legal aspects raised by the judgment, clarifying the fundamental distinctions between the different types of bankruptcy and the legal implications for company directors.

The Case and the Grounds for Appeal

The Court of Appeal of Rome, with a judgment of January 25, 2023, had confirmed the conviction of A.A. and B.B., de facto and de jure directors of the company “Faber Beach Srl”, for fraudulent bankruptcy. In particular, the appellants contested the decision, arguing that there had been no patrimonial misappropriation as the payment of 76,000 euros to the bankrupt company would have represented the fulfillment of a personal guarantee obligation. However, the Court held that the operation was aimed at depleting the company's assets to the detriment of creditors, without the consideration being effectively reinvested in the company.

The Court highlighted that the act of misappropriation consists in the detachment of assets from the company's patrimony without adequate consideration for the satisfaction of creditors' claims.

The Distinction Between Misappropriation and Dissipation

A crucial aspect of the judgment concerns the differentiation between the conduct of misappropriation and dissipation. Misappropriation implies the transfer of assets from the company's patrimony without adequate consideration, while dissipation refers to a distorted and inappropriate use of company resources. In the judgment under review, the Court stated that the contested operation constitutes the crime of fraudulent bankruptcy for misappropriation, as it resulted in a clear depletion of the bankrupt company's assets.

• Misappropriation: transfer of assets without useful consideration.
• Dissipation: use of assets in a manner inconsistent with the company's object.

Legal Implications and Accessory Penalties

Another relevant element of the judgment is the issue of accessory penalties. The Court of Cassation annulled the judgment limited to the duration of the accessory penalties, requiring a new examination by the Court of Appeal of Rome. The Court emphasized that the duration of accessory penalties must be determined based on the criteria set forth in Article 133 of the Criminal Code, and cannot be automatically linked to the principal penalty. This aspect highlights the importance of a discretionary assessment by the judge in determining sanctions for fraudulent bankruptcy offenses.

Conclusions

Judgment no. 36856 of 2024 represents an important clarification in the field of bankruptcy criminal law, particularly concerning the conduct of fraudulent bankruptcy. The distinctions between the various types of bankruptcy are fundamental for the correct application of the law and for the protection of creditors' rights. The Court of Cassation reiterated the need for a careful analysis of business transactions in insolvency contexts, highlighting how even seemingly innocuous actions can lead to significant criminal liability for directors. In a context of increasing attention to compliance and director liability, this judgment serves as a warning to those operating in the business sector.