Documentary Fraudulent Bankruptcy: Reflections on Judgment No. 25034/2023

Judgment No. 25034 of March 16, 2023, issued by the Court of Cassation, offers an important reflection on documentary fraudulent bankruptcy and the consequences of concealing accounting records. This ruling highlights how such conduct can exclude the application of mitigating circumstances, significantly altering the legal landscape related to bankruptcy offenses.

The Case and the Court's Decision

The case refers to an accusation of documentary fraudulent bankruptcy against A. C., in which the concealment of accounting records was contested. The Court rejected the appeal, confirming that the concealment of accounting documents does not allow for the invocation of the mitigating circumstance of special insignificance of the damage, as provided by Article 219, paragraph 3, of the bankruptcy law.

Documentary fraudulent bankruptcy - Concealment of accounting records - Damage of special insignificance - Configurability - Exclusion - Reasons - Case law. In the context of documentary fraudulent bankruptcy, the concealment of accounting records does not allow for the application of the mitigating circumstance of special insignificance of the damage, as provided by Article 219, paragraph 3, bankruptcy law, whenever, making it impossible to reconstruct the management facts of the bankrupt company, it prevents the very demonstration of the damage caused to the creditor mass following the impact that the conducts constituting the crime had on the possibility of exercising the revocatory actions and other actions aimed at protecting creditor interests. (In this case, the Court excluded that the damage caused was particularly insignificant due to the high amount of the established liabilities, which suggested that the size of the company was not contained).

Implications for Businesses and Professionals

This judgment has significant implications for businesses and professionals operating in the sector. It is essential to understand that:

  • The concealment of accounting records can lead to serious legal consequences, including the inability to benefit from mitigating factors.
  • Transparent management of accounting records is essential to prevent the commission of bankruptcy offenses.
  • The size of the company and its related liabilities are determining factors in assessing the damage caused, as indicated by the Court.

Furthermore, lawyers and legal consultants must be particularly attentive to the accounting management practices of their clients to avoid situations that may lead to criminal liability.

Conclusions

In conclusion, Judgment No. 25034 of 2023 by the Court of Cassation represents a clear warning regarding the importance of transparency in the management of accounting records. The decision underscores how the concealment of such documents not only compromises the ability to demonstrate the damage suffered by creditors but can also exclude the configurability of mitigating circumstances. For businesses and professionals, it is essential to adopt rigorous accounting management practices to ensure their legal safety and the protection of creditor interests.

Bianucci Law Firm