Commentary on the ruling of the Court of Cassation, criminal section no. 40732 of 2024: Analysis of fraudulent bankruptcy

The recent ruling of the Court of Cassation, no. 40732 of 2024, offers an important reflection on the responsibilities of administrators in cases of fraudulent bankruptcy. In particular, the Court confirmed the conviction of A.A. and B.B. for having diverted assets belonging to a bankrupt company, highlighting the legal consequences of such behavior. This article analyzes the key points of the ruling and the legal implications for company administrators.

The context of the ruling

The Court of Appeal of Catanzaro had recognized A.A. and B.B. as responsible for fraudulent bankruptcy, as they, through an undervalued business contribution, had caused significant harm to the creditors of the bankrupt company. The case highlighted the figure of the de facto administrator, emphasizing how the Court considered the familial relationship between the two defendants and the evidence collected during the trial.

The injury to the creditors' interest in preserving the integrity of the assets is the key element in configuring the crime of fraudulent bankruptcy.

Responsibilities and thus the defenses of the defendants

B.B.'s defense argued that there had been no asset diversion, but the Court rejected this argument, stating that the assessment of harm must consider the overall decrease in the assets available to creditors. Furthermore, the dispute regarding the correct valuation of the transferred assets was deemed irrelevant, as the operation compromised the company's ability to generate profits.

  • The disproportion between the value of the contribution and the actual value of the assets.
  • The replacement of the entire core business of the company, which led to an immediate inability to operate.
  • The awareness of the debt situation by the administrators.

The legal implications

The ruling emphasizes the importance of the responsibility of administrators in ensuring the protection of creditors. Every act of asset disposition must be evaluated not only for its legitimacy but also for the economic consequences it may generate. The Court's approach highlights a judicial trend aimed at protecting the rights of creditors in the presence of operations that may appear lawful but which, in reality, have harmful effects.

Conclusions

The ruling no. 40732 of 2024 represents an important reminder of the responsibilities of administrators, emphasizing that even seemingly legitimate acts can constitute crimes if aimed at harming creditors. It is essential for entrepreneurs to be aware of the legal implications of their actions to avoid serious consequences and protect the rights of all stakeholders involved.

Bianucci Law Firm