Fraudulent Bankruptcy and Sentencing Reform: Commentary on the Judgment of the Court of Cassation, Criminal Section V, No. 42350 of 2024
The judgment No. 42350 of 2024 of the Court of Cassation represents an important ruling regarding fraudulent bankruptcy and the liability of directors of bankrupt companies. With this decision, the legitimacy judges addressed not only the merits of the criminal responsibility of the defendant A.A., but also issues related to the reasoning and the existence of the elements constituting the crime.
Context of the Judgment
The case in question concerns A.A., convicted of fraudulent bankruptcy in relation to the bankruptcy of two companies, A.D.N. IMMOBILI Srl and FILARMA Srl. The Court of Appeal of Turin had upheld the conviction, redefining the sentence to 3 years and 5 months of imprisonment. However, A.A. appealed for cassation, raising several criticisms regarding the reasoning of the judgment and the absence of intent in his actions.
The entrepreneur's responsibility for preserving the asset guarantee towards creditors justifies the apparent reversal of the burden of proof.
Analysis of the Grounds for Appeal
A.A.'s appeal is based on four grounds of criticism, including the alleged gaps in the accounting reconstruction and the lack of the subjective element of the crime. In particular, the first ground concerns liability for fraudulent bankruptcy due to distraction and is based on the claimed insufficiency of the evidence supporting the charges. The Court of Cassation, however, deemed this grievance inadmissible, stating that the evaluation of the evidence is the responsibility of the merits judge.
Another crucial aspect addressed by the Court is the issue of the subjective element, which does not necessarily require the administrator's awareness of the state of insolvency. It is sufficient that there is an intention to allocate the company's assets to a use other than that of guaranteeing the creditors, as established by the jurisprudence of legitimacy.
Implications of the Judgment
The judgment has important implications for the punitive treatment in cases of fraudulent bankruptcy. The Court annulled the conviction limited to the crime of corporate bankruptcy, with a referral for a new trial, emphasizing that the defendant had not been adequately placed in a position to defend himself regarding the existence of the causal link between the conduct and the corporate insolvency.
- The necessity of clear and consistent reasoning by the merits judge.
- The recognition of the complexity of the crime of improper bankruptcy.
- The relevance of proof for the assertion of criminal liability.
Conclusions
In conclusion, judgment No. 42350 of 2024 offers an important reflection on criminal liability in matters of bankruptcy, highlighting the need for rigorous reasoning by judges and the importance of evidence in the criminal process. The referral for a new trial underscores how the defense must have access to a fair and impartial evaluation, as well as the centrality of the principle of legality in criminal law.
