Fraudulent bankruptcy: analysis of the ruling Cass. pen., Sez. V, n. 51207 of 2023

On December 21, 2023, the Court of Cassation issued a significant ruling on fraudulent bankruptcy, confirming the conviction of A.A., the liquidator of a bankrupt company, for the crime of simple documentary bankruptcy. The ruling not only addresses the application of bankruptcy law but also raises important issues related to defense rights and the clarity of criminal norms.

The context of the ruling

The Court of Appeal of L'Aquila had already convicted A.A., holding him responsible for failing to maintain the mandatory accounting records. In particular, the liquidator was accused of not having delivered the necessary accounting books to the bankruptcy trustee for proper management of the bankruptcy. In light of this conviction, A.A. appealed, raising three grounds for appeal.

The grounds for the appeal

In the first ground, A.A. contested the constitutional illegitimacy of the norm that punishes the irregularity of accounting records. However, the Court rejected this argument, citing previous case law establishing that the relevant legislation does not violate the principles of specificity and harmfulness, as the legislator referred to obligations well known to entrepreneurs.

The legal interest protected by the incriminating norm is harmed whenever the irregular maintenance of accounting records prevents them from fulfilling their typical function of verification.

In the second ground, A.A. emphasized his acquittal from another charge of bankruptcy for distraction, arguing that he could not be held responsible for the failure to deliver the records. Again, the Court maintained that the failure to keep accounting records was sufficient to constitute the offense of documentary bankruptcy.

The Court's conclusions

Finally, in the third ground, A.A. invoked the application of the non-punishability clause provided by art. 131-bis c.p., but the Court deemed this argument inadmissible, as the absence of factors justifying punishability had not been demonstrated.

  • Confirmation of the conviction for documentary bankruptcy.
  • Rejection of the claims of constitutional illegitimacy.
  • Acknowledgment of the seriousness of the liquidator's conduct.

Conclusions

The ruling n. 51207 of 2023 represents an important reference point in the field of fraudulent bankruptcy, reaffirming the necessity for liquidators to strictly adhere to the provisions regarding the maintenance of accounting records. It also clarifies the limits of the right to defense in the presence of behaviors that may compromise transparency in the management of a bankruptcy. This ruling emphasizes the importance of the responsibility of professionals in the field and the attention of the judiciary towards the protection of creditors’ interests.

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