Improper bankruptcy from fraudulent operations: Commentary on Judgment No. 16111 of 2024

The recent judgment No. 16111 of 2024 from the Court of Cassation provides important clarifications on the configuration of improper bankruptcy from fraudulent operations. In particular, the Court established that, to demonstrate this case, it is not necessary to prove specific intent, but rather generic intent is sufficient, meaning awareness of the individual operations and the foreseeability of the insolvency as a consequence of the wrongful conduct.

The regulatory context

The Italian bankruptcy law, in particular Article 223, paragraph 2, letter 2, establishes the foundations for the configuration of improper bankruptcy. The Constitutional Court and established jurisprudence have contributed to outlining the current regulatory framework. The judgment under examination fits into a path already traced by previous decisions, such as those No. 12945 of 2020 and No. 19101 of 2004, which addressed the issue of intent in relation to fraudulent operations.

The meaning of generic intent

Improper bankruptcy from fraudulent operations - Psychological element - Generic intent related to the individual operations and foreseeability of the insolvency as a consequence of the wrongful conduct - Sufficiency - Fraudulent causation of bankruptcy - Specific intent - Necessity - Case. For the configurability of improper bankruptcy from fraudulent operations, it must not be demonstrated that specific intent directed at causing bankruptcy is present, but only generic intent, that is, awareness and will regarding the individual operations and the foreseeability of insolvency as a consequence of the wrongful conduct. (In the case, systematic and prolonged non-compliance with tax and social security obligations resulting from a conscious management choice).

The concept of generic intent refers to the awareness and will of the defendant regarding the operations carried out, and their prolongation over time. This implies that an entrepreneur can be held responsible for improper bankruptcy even in the absence of a direct intent to cause the failure of the business, as long as it is demonstrated that their actions contributed to creating a foreseeable state of insolvency.

Practical and jurisprudential implications

The practical implications of this judgment are relevant for all entrepreneurs and professionals in the sector. It is essential that management choices are based on correctness and transparency, avoiding behaviors that may generate tax or social security defaults. Awareness of such responsibilities is crucial to prevent serious legal consequences.

In conclusion, judgment No. 16111 of 2024 represents an important step forward in defining criminal liability in cases of improper bankruptcy, highlighting the centrality of generic intent and the necessity for transparent management of businesses.

Bianucci Law Firm