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Fraudulent Bankruptcy: Analysis of the Supreme Court Ruling, Criminal Section V, No. 35698 of 2024

The recent ruling of the Supreme Court, No. 35698 of 2024, has provided an important reflection on the topic of fraudulent bankruptcy, particularly regarding the maintenance of accounting records and the requirements of intent. The Court annulled the ruling of the Court of Appeal of Rome, highlighting the need for a correct legal qualification of the conduct of the accused, A.A., former administrator of the company Museo del Tempo Srl, declared bankrupt in 2021.

Context of the Ruling

The Court of Appeal of Rome had confirmed the conviction of A.A. to a prison sentence of one year and four months for fraudulent document bankruptcy. The accused had submitted partial documentation regarding the company, raising questions about irregularities in the maintenance of accounting records. However, the Supreme Court deemed that the ruling had not adequately considered the qualification of the conduct as "omitted" rather than "irregular".

In the context of fraudulent document bankruptcy, the concealment of accounting records presupposes specific intent, while irregular maintenance only requires general intent.

Elements of Intent in Fraudulent Bankruptcy

The Court emphasized that, to configure fraudulent bankruptcy, it is essential to distinguish between the conduct of omitted maintenance of accounting records and that of irregular maintenance. The former implies a total absence of documentation, while the latter refers to a maintenance that, although present, does not allow for a clear reconstruction of the company's economic situation. In particular, the ruling pointed out that:

  • The conduct of omitted maintenance requires proof of specific intent aimed at harming creditors.
  • The conduct of irregular maintenance is integrated with general intent, as it presupposes that the accounting records have been effectively examined.

This distinction is fundamental, as it affects the methods of ascertaining the crime and the related legal effects.

Conclusions

The ruling of the Supreme Court represents an important clarification in the matter of fraudulent bankruptcy, underscoring the importance of a rigorous analysis of accounting documents and the qualification of the related conduct. With the referral to the Court of Appeal of Rome, it requests to reconsider the case in light of these indications, ensuring adequate protection of creditors' rights and a correct application of bankruptcy legislation.