• via Alberto da Giussano, 26, 20145 Milano
  • +39 02 4003 1253
  • info@studiolegalebianucci.it
  • Criminal Lawyer, Family Lawyer, Divorce Lawyer

Fraudulent Bankruptcy: Reflections on the Judgment of the Court of Cassation

The recent ruling of the Court of Cassation, Section V, No. 42448 of November 19, 2024, provides an important opportunity for reflection on the themes of the responsibility of directors and fraudulent bankruptcy. In particular, the case in question involves A. A., vice president of the board of directors of Lavorazioni Alimentari S.c.ar.l., convicted of fraudulent bankruptcy and false corporate communications. The ruling confirms the conviction on appeal, highlighting the complexity of the duties and responsibilities that weigh on company directors.

The Legal Context of Fraudulent Bankruptcy

Fraudulent bankruptcy is governed by Article 216 of R.D. 267/1942 (Bankruptcy Law), which penalizes fraudulent behavior by those managing a company, who, through illegal acts, procure an unjust profit for themselves or others. In this case, the Court of Appeal found A. A. responsible for the diversion of assets and the falsification of accounting records, elements that highlight fraudulent conduct aimed at harming creditors.

The responsibility of a director cannot be limited to the mere office held but must take into account the actual actions and decisions made.

The Critiques and the Court's Responses

A. A. filed an appeal, contesting the decision of the Court of Appeal, arguing that his responsibility was not proven. However, the Court of Cassation rejected these arguments, emphasizing that the responsibility of directors is not automatic but must be evaluated based on the specific actions taken. In particular, the Court highlighted how A. A. had powers of ordinary and extraordinary administration and how he had never contested the operations carried out by the chairman of the board of directors. This led to the confirmation of his responsibility both for fraudulent bankruptcy and for false corporate communications.

Implications and Final Considerations

The ruling underscores the importance of scrupulous and transparent management of companies and the severe consequences that can arise from illegal behavior. Directors must be aware that their responsibility is direct and can be pursued even in cases of omissions or document falsifications. In an ever-evolving legal context, it is crucial that legal practitioners and directors are prepared to face the legal challenges that may arise in matters of bankruptcy and corporate liability.

Conclusions

In conclusion, the ruling of the Court of Cassation serves as a warning for all company directors. The management of a business requires not only technical skills but also an adequate awareness of the related legal responsibilities. Vigilance and transparency are essential to avoid severe penalties and to ensure the protection of creditors and stakeholders.