Fraudulent bankruptcy: commentary on judgment Cass. pen., Sec. V, no. 36041 of 2024

The issue of fraudulent bankruptcy is highly topical, not only for its legal implications but also for the economic consequences that arise from it. Judgment no. 36041 of 2024 by the Supreme Court of Cassation offers important clarifications on this delicate subject, analysing criminal liability in cases of fraudulent transactions that cause a company's failure. The defendants, A.A. and B.B., were convicted of fraudulent bankruptcy due to transactions deemed uneconomical and severely damaging to Prestige Srl.

Fraudulent transactions and criminal liability

The Court upheld the decision of the Court of Appeal of Venice, which had partially amended the first-instance judgment regarding accessory penalties, but not the criminal liability of the defendants. In particular, A.A. and B.B. were held responsible for causing the company's failure through three investment transactions, all characterised by a clear lack of economic convenience. The Court emphasised how these transactions, although not carried out with the intent to cause the company's failure, had the foreseeable and direct effect of financial collapse.

• Transaction 1: Profit-sharing agreement with Società Agricola Serramarina for an amount of 1,400,000 Euros.
• Transaction 2: Commitment to pay 2,160,000 Euros for the purchase of a credit.
• Transaction 3: Purchase of 6% of CTS GMBH shares for 2,200,000 Euros.

The principle of reasonableness and the assessment of conduct

The Court reiterated that fraudulent transactions do not require the qualification of conduct in terms of criminal offences, but only the ascertainment of management abuses.

It is interesting to note how the Court of Cassation highlighted the principle of reasonableness in assessing the defendants' conduct. Indeed, the court of legitimacy did not limit itself to considering the singularity of the transactions but examined the context in which they were carried out. The Court held that the transactions, although not directly misappropriating, had created a situation of collapse that had been accepted by the directors. The proof of intent, therefore, is not limited to the intention to cause harm but extends to the awareness of the risk that such transactions could entail.

Conclusions

In conclusion, judgment no. 36041 of 2024 represents an important precedent for all situations where fraudulent bankruptcy is suspected. It clarifies the need for careful examination of corporate transactions, highlighting how criminal liability can also arise from imprudent and potentially damaging conduct for the company. Directors must therefore be aware that even apparently legitimate business choices can be criminally relevant if not supported by an adequate assessment of economic convenience.