Analysis of Judgment No. 26886 of 2024: Fraudulent Bankruptcy and Preventive Arrangement

The recent judgment no. 26886 of March 8, 2024, by the Court of Cassation offers an important reflection on the theme of fraudulent bankruptcy, particularly regarding its application in the context of preventive arrangements. The decision, presided over by A. G. and reported by M. B., fits into a current legal debate concerning the compatibility of existing regulations with constitutional principles.

Fraudulent Bankruptcy and Preventive Arrangement: The Regulatory Context

The issue of fraudulent bankruptcy, governed by Article 236 of the bankruptcy law, provides for specific penal treatment for illicit conduct by those managing a company in a state of insolvency. The judgment in question focuses on the equivalence between fraudulent bankruptcy in bankruptcy proceedings and that 'from preventive arrangement'. The legislator has established that even in the case of a preventive arrangement, which aims to ensure the payment of creditors, fraudulent conduct should be punished with the same severity.

The Constitutional Legitimacy Issue

A crucial aspect of the judgment is the assertion of the manifest unfoundedness of the constitutional legitimacy issue raised concerning Articles 3 and 27 of the Constitution. This means that the Court has deemed there to be no violation of the principles of equality and personal responsibility in criminal matters. Indeed, the preventive arrangement and the bankruptcy procedure share a competitive and liquidatory dimension, thus justifying a uniform penal treatment. In this regard, the Court declared:

Fraudulent bankruptcy in bankruptcy proceedings - Fraudulent bankruptcy “from preventive arrangement“ - Equivalence of penal treatment pursuant to Article 236, paragraph 2, no. 1, bankruptcy law - Constitutional legitimacy issue - Manifest unfoundedness - Reasons. Regarding bankruptcy offenses, the constitutional legitimacy issue concerning Articles 3 and 27 of the Constitution, related to Article 236, paragraph 2, no. 1, bankruptcy law, is manifestly unfounded in that it imposes the same penal treatment for fraudulent bankruptcy "from preventive arrangement" as that provided for fraudulent bankruptcy in bankruptcy proceedings, as the preventive arrangement, like the bankruptcy procedure, has a competitive and potentially liquidatory dimension.

Implications and Conclusions

Judgment no. 26886 of 2024 represents an important step forward in defining the penal regime applicable to bankruptcy offenses. The clear equivalence between fraudulent bankruptcy in bankruptcy proceedings and that from preventive arrangement confirms the legislator's intention to protect the rights of creditors and ensure fairness in the management of corporate crisis procedures. Furthermore, the affirmation of the constitutional legitimacy of the penal treatment provided by the bankruptcy law contributes to strengthening legal certainty and trust in the legal system.

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