Fraudulent Bankruptcy: Commentary on the Judgment of the Court of Cassation, Criminal Section V, No. 35698 of 2024
The judgment of the Court of Cassation dated September 23, 2024, No. 35698, addresses crucial issues regarding fraudulent bankruptcy, particularly the distinction between the failure to maintain and irregular maintenance of accounting records. The Court, partially accepting the appeal of A.A., provided significant clarifications for the legal qualification of behaviors in bankruptcy matters.
The Case Under Review
A.A. was the administrator and liquidator of the company Museo del Tempo Srl, declared bankrupt in 2021. The Court of Appeal of Rome had confirmed the sentence of one year and four months in prison for fraudulent bankruptcy, highlighting the submission of partial accounting documentation. In particular, the appellant argued that the accounting records had not been completely destroyed, but merely not preserved, which should have led to a different legal qualification of the conduct.
The Court clarified that the failure to maintain accounting records constitutes an autonomous offense compared to irregular maintenance, requiring a different approach in assessing intent.
The Differences Between Failure to Maintain and Irregular Maintenance
The Court emphasized the importance of distinguishing between:
- Failure to Maintain: refers to the total absence of accounting records, involving specific intent aimed at harming creditors.
- Irregular Maintenance: implies that the records exist but have anomalies, requiring general intent.
This distinction is fundamental for the application of the rules provided by Article 216 of the bankruptcy law, which regulates the different types of fraudulent bankruptcy. The Court of Cassation reiterated that the assessment of intent must be supported by factual elements demonstrating the intent to harm creditors.
Conclusions
The judgment No. 35698 of 2024 represents an important evolution in the jurisprudence on the subject of fraudulent bankruptcy. The Court recognized the importance of a correct legal qualification of behaviors, requiring an accurate reconstruction of the offense. This approach not only offers clarity to legal professionals but also ensures greater protection for creditors, ensuring that responsibilities are adequately attributed based on the actual conduct of the administrators. The issue of proper maintenance of accounting records therefore remains central in the landscape of bankruptcy law.
