Judgment No. 16109 of 2024: The Importance of Control in Corporate Administration

The judgment No. 16109 of February 6, 2024, by the Court of Cassation offers significant insights regarding the responsibilities of company directors, particularly in relation to the figure of the de facto director. This ruling is placed in a complex legal context, where the distinction between formal and de facto directors becomes crucial for the analysis of criminal responsibility. The Court declared inadmissible the appeal of a formal director who failed to monitor the activities of the de facto director, excluding the application of the mitigating circumstance of minimal participation.

The Legal Context of the Judgment

The case at hand concerns Salvatore C., accused of having facilitated the commission of bankruptcy offenses due to his inactivity in supervising the de facto director. The Court referred to Article 110 of the Penal Code, which governs the participation of individuals in a crime, and Article 216 of the Bankruptcy Law, emphasizing that the absence of control by the formal director represents an active conduct that contributes to the commission of crimes.

Failure of the formal director to control the activities of the de facto director - Mitigating circumstance of minimal participation - Exclusion - Reasons. In terms of participation in a crime, the mitigating circumstance of minimal participation cannot be configured regarding the formal director of the company who has failed to exercise any control over the activities of the de facto director, as, in doing so, he not only facilitated the commission of criminal acts by the latter but also provided an essential and indispensable contribution to the realization of bankruptcy crimes.

Practical Implications of the Judgment

This ruling has important implications for company directors. In fact, it emphasizes that:

  • Criminal responsibility can extend to formal directors in the event of a failure to control.
  • It is essential for directors to adopt appropriate oversight measures over the actions of de facto directors.
  • The lack of control cannot be viewed as minimal participation but as an active contribution to the commission of crimes.

The Court clarified that the omission of control not only facilitates illegality but is itself a conduct of criminal relevance. Therefore, directors should be aware of their duties and responsibilities to avoid incurring heavy penalties.

Conclusions

In conclusion, judgment No. 16109 of 2024 represents an important step forward in defining the responsibilities of directors in the corporate field. It highlights the importance of active and constant control over business activities, not only to ensure legality but also to protect the interests of the company and its stakeholders. Directors are warned: insufficient oversight can lead to significant criminal consequences.

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