Judgment No. 33810 of 2023 and Normative Continuity in Fraudulent Bankruptcy
The recent judgment No. 33810 of May 26, 2023, filed on August 1, 2023, by the Court of Cassation, offers important clarifications regarding the discipline of fraudulent bankruptcy, particularly concerning the normative continuity between Article 216 of the bankruptcy law and Article 322 of Legislative Decree of January 12, 2019, No. 14, known as the Code of Business Crisis and Insolvency. This ruling not only reiterates the identity of the two provisions but also emphasizes the absence of different treatment for bankruptcy cases subject to the new discipline.
Normative Continuity
The Court affirmed that there is full normative continuity between the two provisions, highlighting that the lexical variations introduced by the new code do not affect the substance of the rule. This is particularly significant for companies facing insolvency proceedings, as it underscores that criminally relevant conduct remains unchanged.
Art. 322 Legislative Decree of January 12, 2019, No. 14 - Normative continuity with Art. 216 bankruptcy law - Existence - Reasons - Consequences. In the matter of fraudulent bankruptcy, there is full normative continuity between the provision of Art. 216 bankruptcy law and Art. 322 Legislative Decree of January 12, 2019, No. 14 (so-called Code of Business Crisis and Insolvency), given the identical wording of the two criminal provisions, apart from lexical updates that are not relevant in criminal proceedings. Therefore, the preceding discipline, to be applied pursuant to the transitional provisions of Art. 390, paragraph 3, of the Code of Crisis, for all cases where bankruptcy has been declared, does not result in any detrimental treatment relevant for the purposes of Art. 2 of the Criminal Code.
Legal References and Practical Implications
The judgment is part of a broader legal context in which the legislator has sought to rationalize and simplify business crisis procedures. Legal references, such as the Criminal Code and the transitional provisions of the Code of Crisis, highlight a clear intent for uniformity and stability within the legal system. The reasons for such continuity lie in the need to ensure legal certainty for industry operators and to avoid confusion in an already complex area.
The practical consequences of this judgment can be summarized in the following points:
- Recognition of the continuity of criminally relevant conduct.
- Absence of substantial changes in the treatment of fraudulent bankruptcy cases.
- Normative clarity for businesses and legal professionals.
Conclusions
In conclusion, judgment No. 33810 of 2023 represents a significant step forward in defining the discipline of fraudulent bankruptcy, confirming the normative continuity between past provisions and those of the new Code of Crisis. This clarification not only provides greater legal certainty in the treatment of business crises but also highlights the importance of a consistent approach by the judiciary, which can contribute to more effective management of insolvency situations. Businesses and industry professionals are therefore called upon to pay particular attention to these developments to ensure the correct application of current legislation.
