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Commentary on the Judgment of the Court of Cassation, Criminal Section V, No. 40100 of 2018: Fraudulent Bankruptcy and Liability of Directors

The judgment No. 40100 of 2018 by the Court of Cassation offers an important reflection on criminal liability in cases of fraudulent bankruptcy. The case analyzed concerns Z.A., accused of causing the bankruptcy of his company through fraudulent operations and the destruction of accounting documentation. The Court's decision highlights some key points that deserve to be explored, both for legal professionals and entrepreneurs.

The Context of the Judgment

The case originates from the ruling of the Court of Appeal of Milan, which had upheld the conviction of Z.A. for documentary fraudulent bankruptcy and tax violations. The Court of Appeal found the evidence of the defendant's fraudulent conduct sufficient, particularly the systematic omission in the payment of taxes and social security contributions, which had generated a debt of over 1,800,000 euros.

The Court clarified that criminal liability for bankruptcy is not limited to the mere material causation of the bankruptcy but also requires the defendant's awareness of the fraudulent nature of his actions.

Elements of Liability and Awareness

A crucial aspect that emerged from the judgment is the need to demonstrate the defendant's awareness of the fraudulent nature of his operations. As established by the Court, for the crime of fraudulent bankruptcy to be configured, it is essential that the perpetrator is aware of and intends the fraudulent nature of the operation, perceiving the bankruptcy as an effect of his conduct. In this context, the Court reiterated that a liquidity crisis, while representing a case of force majeure, does not exclude criminal liability if there has been a fraudulent action.

  • The crime of fraudulent bankruptcy is configured with fraudulent and omissive operations.
  • The awareness of the possibility of bankruptcy is a key element for criminal liability.
  • The failure to pay taxes and contributions is considered a fraudulent operation if systematic.

Conclusions

In conclusion, judgment No. 40100 of 2018 represents an important precedent for jurisprudence regarding fraudulent bankruptcy. It highlights how the criminal liability of directors cannot be excluded by circumstances of force majeure but must be evaluated in light of the awareness and intentionality of the actions taken. The clarity with which the Court has outlined the boundaries of criminal liability in bankruptcy matters provides food for thought for both legal professionals and entrepreneurs, emphasizing the importance of careful and transparent business management.