Fraudulent Bankruptcy: The Supreme Court on the Compensation of the De Facto Director (Judgment no. 19402/2025)

The figure of the de facto director plays a delicate role in bankruptcy law. Their actions can constitute serious offenses such as fraudulent bankruptcy. Judgment no. 19402 of 2025 by the Supreme Court clarifies cash withdrawals made by the de facto director as compensation. This ruling offers essential insights for professionals and entrepreneurs, outlining the boundaries between legitimacy and illegality and the importance of formalizing corporate relationships.

The De Facto Director and Asset Bankruptcy

A de facto director is someone who, despite not having a formal appointment, effectively exercises corporate management powers. They are equated to a de jure director for the purposes of criminal liability in case of bankruptcy (Art. 223 of the Bankruptcy Law). Asset fraudulent bankruptcy (Art. 216, paragraph 1, no. 1) punishes those who misappropriate or dissipate company assets, causing prejudice to creditors. Judgment no. 19402/2025 examines the case of L. T., a de facto director accused of appropriating sums from the bankrupt company.

The conduct of a de facto director who appropriates sums of money from the company allegedly due to them as compensation for their work performed for the entity constitutes the crime of asset fraudulent bankruptcy. (Case where the de facto director had no employment relationship with the company and, therefore, in the absence of a formal relationship, could not claim any credit from the bankrupt entity).

This maxim crystallizes a fundamental principle. The Supreme Court has reiterated that the appropriation of sums by a de facto director, even if justified as "compensation," constitutes asset fraudulent bankruptcy. The crucial point is the absence of a valid legal relationship that legitimizes the withdrawal. In the specific case, the de facto director had no formal relationship with the company, so without a legal title, the sums were not a legitimate credit. The withdrawal translates into the misappropriation of assets, to the detriment of creditors, fulfilling Art. 216, paragraph 1, no. 1, of the Bankruptcy Law. This reinforces the principle that corporate management, even if de facto, must comply with formal and substantive rules, to protect company assets and creditors.

Implications and the Need for Formalization

The ruling by the Supreme Court highlights relevant implications. The qualification of "de facto director" does not exempt from responsibilities. The formalization of every economic relationship between the company and its managers is central. The absence of a contract, resolution, or deed establishing compensation makes every withdrawal unjustified and potentially illegal. This links to the Civil Code regarding the remuneration of directors. To avoid serious consequences, it is essential to adhere to principles of transparency and legality.

• **Formalization of relationships:** Any compensation or reimbursement must be previously resolved and documented.
• **Asset separation:** The company's assets and the director's personal assets must remain distinct.
• **Legal advice:** It is always advisable to seek the assistance of a lawyer specializing in corporate and bankruptcy law to prevent risky conduct.
• **Diligent management:** Even without a formal appointment, those managing the company are required to act diligently and loyally in the interest of the entity and its creditors.

Conclusions

Judgment no. 19402 of 2025 by the Supreme Court is an important warning for those holding management roles, even informal ones. The line between legitimate remuneration and illicit conduct is thin in the absence of adequate formal safeguards. The principle is clear: there is no credit for compensation if it is not supported by a valid legal title. Ignoring this distinction can lead to serious consequences, constituting asset fraudulent bankruptcy. It is imperative for companies and directors to adopt transparent and formally impeccable management, resorting to legal advice to ensure the protection of company assets and the peace of mind of creditors.