Fraudulent Bankruptcy: Analysis of Judgment Cass. pen., Section V, No. 35698 of 2024
The recent judgment of the Supreme Court of Cassation, No. 35698 of 2024, has offered an important reflection on the theme of fraudulent bankruptcy, particularly regarding the keeping of accounting records and the requirements of intent. The Court annulled the judgment of the Court of Appeal of Rome, highlighting the need for a correct legal qualification of the conduct of the defendant, A.A., former administrator of the company Museo del Tempo Srl, declared bankrupt in 2021.
Context of the Judgment
The Court of Appeal of Rome had confirmed the conviction of A.A. to a prison sentence of one year and four months for documentary fraudulent bankruptcy. The defendant had filed partial documentation concerning the company, raising questions about the irregularity in keeping accounting records. However, the Court of Cassation held that the judgment had not adequately considered the qualification of the conduct as "omitted" rather than "irregular".
In the context of documentary fraudulent bankruptcy, the concealment of accounting records presupposes specific intent, while irregular keeping requires only general intent.
Elements of Intent in Fraudulent Bankruptcy
The Court highlighted that, to establish fraudulent bankruptcy, it is essential to distinguish between the conduct of omitting to keep accounting records and that of keeping them irregularly. The former implies the total absence of documentation, while the latter refers to records that, although present, do not allow for a clear reconstruction of the company's economic situation. In particular, the judgment pointed out that:
- The conduct of omitting to keep records requires proof of specific intent, aimed at causing prejudice to creditors.
- The conduct of irregular keeping is integrated with general intent, as it presupposes that the accounting records have actually been examined.
This distinction is fundamental, as it affects the methods of ascertaining the crime and its legal effects.
Conclusions
The Cassation judgment represents an important clarification on fraudulent bankruptcy, emphasizing the importance of a rigorous analysis of accounting documents and the qualification of related conduct. With the referral to the Court of Appeal of Rome, it is requested to reconsider the case in light of these indications, ensuring adequate protection of creditors' rights and correct application of bankruptcy law.
