Commentary on Judgment No. 14405 of 2024: Improper Fraudulent Bankruptcy and Lease of Business Branch

The judgment no. 14405 of January 30, 2024, issued by the Court of Cassation, addresses a topic of significant importance in the context of bankruptcy crimes, particularly regarding the configurability of improper fraudulent bankruptcy due to fraudulent transactions. This decision offers important clarifications on the conduct of leasing a business branch and the related legal consequences.

The Context of the Judgment

In this specific case, the Court examined the situation of a company that leased its only business branch for a fee deemed incongruous and collected only partially. The central issue was whether, at the time of concluding the contract, the company was able to carry out its typical activity and generate income comparable to that derived from the lease operation.

Improper fraudulent bankruptcy due to fraudulent transactions - Lease of business branch - Configurability - Existence - Conditions. In the matter of bankruptcy crimes, improper fraudulent bankruptcy due to fraudulent transactions can be configured (in this case, leasing the only business branch for an incongruous fee collected only in part) if it is shown that the company, at the time of concluding the contract, was able to carry out its typical activity and, therefore, to produce income comparable to that which could be derived from the operation, using "ex se" the transferred assets.

The Conditions for Configurability

According to the Court's ruling, in order for improper fraudulent bankruptcy to be configured, certain fundamental conditions must be met:

  • The company must be able to carry out its typical activity at the time of concluding the contract;
  • It must be able to generate income comparable to that derived from the lease operation;
  • The rental fee must be deemed incongruous relative to the economic value of the leased business branch.

These conditions are crucial to determine whether the lease operation can be considered fraudulent and, consequently, deserving of criminal sanctions.

Legal and Jurisprudential Implications

This judgment fits into a broader jurisprudential context, where efforts have been made to outline the boundaries of criminal liability in cases of bankruptcy crimes. The Court referenced specific regulations, such as Article 216 of the Bankruptcy Law, which govern the conduct deemed illicit in bankruptcy matters.

It is therefore asserted that operations that may seem legitimate, such as leasing a business branch, may conceal fraudulent intentions, especially if they do not comply with the aforementioned conditions.

Conclusions

Judgment no. 14405 of 2024 represents a significant step forward in the fight against fraudulent conduct in the bankruptcy realm. It underscores the importance of a careful analysis of commercial operations and the necessity to ensure that they comply with current laws. The correct application of regulations can help protect the interests of creditors and maintain the integrity of the market.

Bianucci Law Firm