Fraudulent Bankruptcy and Judicial Error: Commentary on Judgment No. 38136 of 2024
Judgment No. 38136 of 2024 by the Court of Cassation, issued on July 12, 2024, represents an important piece in the jurisprudence regarding fraudulent bankruptcy. In this case, A.A., sole director of the company S.G. Cooperative Society, was initially sentenced for improper fraudulent bankruptcy. However, the Court accepted the appeal, highlighting gaps in the reasoning of the judgment by the Court of Appeal of Turin, which had partially amended the first-instance decision.
The Context of the Judgment
The Court of Appeal had deemed it appropriate to classify A.A.'s offense as improper fraudulent bankruptcy, for not having timely requested the company's bankruptcy, a decision that the Cassation found unfounded. The poor reasoning and the failure to examine the subjective element of the offense raise important questions about the distinction between different types of bankruptcy.
The Court of Cassation emphasized that the burden of reasoning is crucial in criminal proceedings, especially in complex cases such as those involving bankruptcy.
The Differences Between Simple and Fraudulent Bankruptcy
The judgment clarifies the differences between the types of bankruptcy. In particular:
- Improper Fraudulent Bankruptcy (art. 217, co. 1, n. 4, Bankruptcy Law): punishable for gross negligence, manifested through a conscious omission in the bankruptcy request.
- Simple Bankruptcy (art. 224, co. 1, n. 2, Bankruptcy Law): constituted by the failure to comply with legal obligations, with more specific responsibility for the violation of laws.
The distinction is fundamental because the criminal consequences and responsibilities vary significantly. The Cassation highlighted that, in order to configure fraudulent bankruptcy, it is necessary to demonstrate gross negligence, which cannot be simply inferred from the delay in the bankruptcy request.
Conclusions
The decision of the Court of Cassation invites reflection on the need for solid and coherent reasoning by judges, especially in cases of great complexity such as those related to bankruptcy. Judgment No. 38136 of 2024 not only annulled the previous decision but also remanded the case to the Court of Appeal to carefully and rigorously examine the constitutive elements of the contested offense, thereby ensuring a fair trial and adequate protection of the rights of the defendants.
