Asset Infidelity: Commentary on Judgment No. 26415 of 2024

Judgment No. 26415 of April 2, 2024, represents an important ruling by the Court of Cassation regarding asset infidelity by company directors. This case provides significant insights into the legal and financial responsibilities that may arise from illicit behaviors performed in conflict of interest.

The Regulatory Context and the Facts of the Case

Under Italian law, asset infidelity is a crime that occurs when a director of a company performs acts of asset disposition that harm the interests of the company. The judgment in question emphasizes how the act of disposition, if carried out with an interest in conflict with that of the company, constitutes a crime-contract, that is, an unlawful action manifested through a legal transaction.

In this case, the director, P. C., was accused of intentionally causing financial harm to the company through acts that did not respect its interests. The Court reiterated that such actions not only violate the trust placed in the director but also configure relevant legal consequences, such as the direct confiscation of profits derived from the illicit act.

The Consequences of the Judgment

The Court established that:

  • The act of contractual disposition, if carried out with a conflicting interest, constitutes a crime-contract.
  • The financial damage caused is to be considered a direct consequence of the crime itself.
  • The profit obtained from the illicit act is subject to direct confiscation, pursuant to Article 2641 of the Civil Code.
Asset infidelity - Act of disposition by the director - Interest in conflict with that of the company - Financial damage intentionally caused to the company - Crime-contract - Existence - Consequences - Direct confiscation of the profit in full. In the context of the crime of asset infidelity, the act of contractual disposition carried out by the director who, with an interest in conflict with that of the company, intentionally causes financial harm to the latter, constitutes a so-called crime-contract as it results from an unlawful determination "ab origine" that produces the identification of the crime within the legal transaction, with the effect that the related profit is an immediate and direct consequence of the crime and is, therefore, entirely subject to direct confiscation pursuant to Article 2641, first paragraph, of the Civil Code.

Conclusions

Judgment No. 26415 of 2024 provides important clarification on the responsibilities of directors regarding asset infidelity. It highlights the necessity to always operate in compliance with the interests of the company, avoiding conflicts that may lead to disastrous financial consequences. The direct confiscation of illicit profits represents a fundamental deterrent measure to ensure correctness and transparency in the management of companies. Directors must be aware of these implications to protect not only themselves but also the interests of the companies they represent.

Bianucci Law Firm