Fraudulent Bankruptcy and Repayments to Members: Commentary on Judgment No. 27446 of 2024

The recent judgment No. 27446 of 2024, issued by the Court of Cassation, provides an important clarification regarding bankruptcy offenses, especially concerning repayments to members. The decision focuses on the different configurations of bankruptcy, distinguishing between the withdrawal of sums as repayments of capital contributions and that of sums returned as loans. This distinction is crucial for understanding criminal liability in the event of corporate distress.

The Regulatory Context

In Italy, bankruptcy offenses are primarily governed by the Bankruptcy Law. The judgment in question is based on specific articles that outline the types of fraudulent and preferential bankruptcy. The Court emphasized that the repayment of sums to members, particularly regarding capital contributions, constitutes an act of fraudulent bankruptcy due to distraction. This is because such contributions do not generate an enforceable credit during the life of the company.

The Fundamental Distinction Between Capital and Loans

The maxim of the judgment states:

Repayments to members of capital contributions - Fraudulent bankruptcy - Configurability - Existence - Repayment to members of contributions made as loans - Preferential bankruptcy - Configurability - Reasons. In the context of bankruptcy offenses, the withdrawal of sums of money as repayment of contributions made by members in capital (or referred to by similar terms) constitutes the offense of fraudulent bankruptcy due to distraction, as such contributions do not give rise to an enforceable credit during the life of the company, while the withdrawal of sums as repayment of contributions made by members as loans, generating an unsecured credit that is actual and enforceable, constitutes the offense of preferential bankruptcy.

This distinction is crucial: capital contributions, not turning into enforceable credits, do not provide members with legal protection in the event of repayment, thus configuring an offense of fraudulent bankruptcy. In contrast, sums returned as loans create an unsecured credit that is actually enforceable, configuring an offense of preferential bankruptcy.

Practical Implications and Conclusions

The implications of this judgment are significant for entrepreneurs and members of distressed companies. It is essential for members to understand the differences between the various types of contributions and the legal consequences of repayments. In particular, it is crucial that decisions regarding financing between members and the company are managed with extreme caution to avoid the risk of incurring criminal liability.

In conclusion, judgment No. 27446 of 2024 represents an important step forward in legal clarity regarding bankruptcy. It highlights the need for proper management of financial relationships between members and the company, emphasizing how choices made in this area can have significant legal repercussions.

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