Fraudulent Bankruptcy: Analysis of the Judgment of the Court of Cassation, Criminal Section V, No. 27703/2024
The judgment No. 27703 of 2024 by the Court of Cassation addresses crucial issues related to fraudulent bankruptcy, particularly concerning preferential conduct during the insolvency phase. The decision, issued by the Criminal Section V, sheds light on the necessary requirements to configure the crime of bankruptcy within a bankruptcy law context that continues to raise questions.
Legal Context of Fraudulent Bankruptcy
Fraudulent bankruptcy is a crime regulated by Article 216 of the Bankruptcy Law, which punishes the behavior of an entrepreneur who, aware of their insolvency, favors certain creditors to the detriment of others. In the case at hand, the matter involved A.A., the legal representative of the company Ge. Im. Ed. Srl, declared bankrupt in 2016. The contested operations included preferential payments and the return of deposits, made in a context of the company's economic difficulties.
The Court clarified that the offsetting of debts and credits can constitute the crime of preferential bankruptcy if it occurs during the insolvency phase and favors certain creditors.
Analysis of the Judgment
- The Court upheld the conviction of A.A. for preferential fraudulent bankruptcy, highlighting that the payment operations were carried out when the company was already in a state of insolvency.
- The defense argued that the payments represented contractual obligations, but the Court emphasized that such justification did not exempt from the charge of favoritism towards specific creditors.
- Regarding documentary bankruptcy, it was highlighted that the absence of motivation from the defense did not support the request for exclusion of liabilities.
Conclusions
The judgment No. 27703 of the Court of Cassation represents an important reference point for jurisprudence in the field of fraudulent bankruptcy. It underscores how the entrepreneur's awareness of their insolvency and the methods of payment made can configure criminally relevant behaviors. The decision offers interesting insights not only for legal practitioners but also for entrepreneurs, who must be aware of the legal implications of their actions in times of corporate crisis.
