Fraudulent Bankruptcy: Analysis of the Judgment of the Supreme Court, Criminal Section V, No. 36856 of 2024

The recent ruling of the Supreme Court, Criminal Section V, No. 36856 of 2024, serves as an important reference point in the case law regarding the crime of fraudulent bankruptcy. The court examined the conduct of A.A. and B.B., accused of fraudulent bankruptcy due to distraction and dissipation, partially confirming the merits decisions but accepting some grounds for appeal. This article aims to analyze the main legal aspects raised by the ruling, clarifying the fundamental distinctions between the various types of bankruptcy and the legal implications for company directors.

The Case and the Grounds for Appeal

The Court of Appeal of Rome, with a ruling dated January 25, 2023, had confirmed the conviction of A.A. and B.B., de facto and de jure administrators of the company "Faber Beach Srl", for fraudulent bankruptcy. In particular, the appellants contested the decision, arguing that there was no asset distraction as the payment of 76,000 euros to the bankrupt company would have represented the fulfillment of a personal guarantee obligation. However, the Court found that the operation was aimed at depleting the company's assets to the detriment of creditors, without the consideration being actually reinvested in the company.

The Court emphasized that the act of distraction consists of the removal from the social patrimony of assets without a useful consideration for satisfying creditor claims.

The Distinction between Distraction and Dissipation

A crucial aspect of the ruling concerns the differentiation between distraction and dissipation. Distraction implies the transfer of assets from the social patrimony without adequate consideration, while dissipation refers to a distorted and incongruous use of corporate resources. In the ruling under examination, the Court stated that the contested operation constitutes the crime of fraudulent bankruptcy for distraction, as it involved a clear depletion of the assets of the bankrupt company.

  • Distraction: transfer of assets without useful consideration.
  • Dissipation: use of assets in a manner incongruous to the corporate purpose.

The Legal Implications and Accessory Penalties

Another relevant element of the ruling is the issue of accessory penalties. The Supreme Court annulled the sentence concerning the duration of the accessory penalties, requiring a new examination by the Court of Appeal of Rome. The Court emphasized that the duration of the accessory penalties must be determined based on the criteria set forth in Article 133 of the Penal Code and cannot be automatically related to the principal penalty. This aspect highlights the importance of a discretionary evaluation by the judge in determining the sanctions for crimes of fraudulent bankruptcy.

Conclusions

Judgment No. 36856 of 2024 represents an important clarification in the field of bankruptcy criminal law, particularly concerning the conduct of fraudulent bankruptcy. The distinctions between the various types of bankruptcy are fundamental for the correct application of the law and for the protection of creditors' rights. The Supreme Court reiterated the necessity of a careful analysis of business operations in insolvency contexts, highlighting how even seemingly innocuous actions can entail significant criminal liability for directors. In a context of increasing attention to compliance and the accountability of directors, this ruling serves as a warning for those operating in the business sector.

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