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Fraudulent Bankruptcy: Commentary on the Judgment of the Supreme Court, Criminal Section V, No. 39730/2024

The recent judgment of the Supreme Court of Cassation, Criminal Section V, No. 39730 of October 29, 2024, addressed the sensitive issue of fraudulent bankruptcy, confirming the responsibility of A.A. and B.B., members of the board of directors of a bankrupt company. The decision revolves around the issue of the diversion of real estate and its donation to a political entity, analyzing the legal implications and the methods of ascertaining the crime.

The Context of the Judgment

The Court examined the case of A.A. and B.B., accused of diverting real estate in the context of the bankruptcy of the Società Edilizia Romana Spa. The appellants argued that the transactions were carried out to obtain tax benefits and did not harm the creditors, invoking the company's asset solidity at the time of the donations. However, the Cassation Court emphasized that the crime of fraudulent bankruptcy is established not only in the presence of an actual damage but also in a conduct capable of endangering the interests of creditors.

The diversion of assets from the corporate patrimony harms the creditors' interest in preserving the asset base.

Legal Principles and Assessment of Conduct

Regarding criminal responsibility, the Court reaffirmed that general intent is sufficient for the configuration of fraudulent bankruptcy. It is not necessary to prove that the act caused immediate harm, but it is sufficient to demonstrate awareness of the potential injury to the interests of creditors. Furthermore, the assessment of conduct must take into account the actual financial situation of the company and the nature of the operations carried out.

  • The gratuitousness of the agreements implies a conscious intention to withdraw assets from the corporate patrimony.
  • Each act of disposal must be evaluated concerning its impact on the creditors' asset guarantee.
  • The debt position towards a mortgage creditor must be considered in calculating asset solidity.

Conclusions

The judgment in question represents an important reminder for administrators of companies in crisis. It clarifies that criminal responsibility for fraudulent bankruptcy does not depend solely on the actual damage caused but on the potential riskiness of the operations carried out. Administrators must therefore adopt behaviors marked by maximum caution and transparency in order to protect the interests of creditors and avoid criminal consequences. The Court has demonstrated that, even in the presence of apparent asset solidity, operations that may compromise the corporate patrimony are subject to criminal penalties.