Fraudulent Bankruptcy: Commentary on Judgment No. 14932 of 2023
The recent judgment No. 14932 of February 28, 2023, issued by the Court of Cassation, offers important reflections on the regulation of fraudulent bankruptcy and, in particular, on the configurability of the so-called "repaired bankruptcy". This decision, which involves the defendant E. M., has highlighted crucial aspects concerning the restitutions and payments made prior to the bankruptcy, elements of fundamental importance in Italian bankruptcy law.
The Concept of 'Repaired' Bankruptcy
According to the Court, for the configurability of "repaired" bankruptcy, the restitution of individual assets removed is not necessary; it is sufficient that the payments made into the corporate coffers before the bankruptcy correspond exactly to the distracting acts perpetrated. This principle is of great relevance, as it offers a safeguard for the entrepreneur who, despite having carried out distracting acts, manages to reintegrate the corporate assets with equivalent payments.
- Restitution of assets not necessary
- Importance of payments to the company
- Exact correspondence between distracting acts and payments
The Specific Case and Legal Implications
In the examined case, the Court criticized the decision of the Court of Appeal of Ancona, which had convicted the defendant for fraudulent distracting bankruptcy. The Court of Cassation highlighted that an adequate assessment of the defendant's claims had not been made, particularly regarding severance pay and other salary items. This aspect is crucial, as the correct consideration of the sums saved by the company and the bankruptcy procedure is fundamental for assessing the entrepreneur's liability.
“Repaired” bankruptcy - Configurability - Restitution of individual assets removed - Necessity - Exclusion - Exact correspondence between the payments made and the distracting acts perpetrated - Sufficiency - Case. For the configurability of "repaired" bankruptcy, the restitution of individual assets removed is not necessary, but it is required that the payments into the corporate coffers, made prior to the bankruptcy to reintegrate the previously harmed assets, correspond exactly to the distracting acts previously perpetrated. (Case in which the Court criticized the conviction for the crime of fraudulent distracting bankruptcy, with which, without evaluating the validity of the defendant's "claims," subject to a settlement agreement - namely, the amount of claims for severance pay and other salary items, their "position" concerning the credits admitted to the bankruptcy procedure and, therefore, the sums saved by the company and the bankruptcy procedure - the restitution of an amount exceeding the value of the assets subject to distraction, but lower than the extent of the losses, was deemed insufficient).
Conclusions
In conclusion, judgment No. 14932 of 2023 represents a significant step in the jurisprudence regarding fraudulent bankruptcy. It clarifies that mere restitution of the removed assets is not the only criterion for assessing the entrepreneur's liability, but it is also fundamental to consider the payments made to reintegrate the corporate assets. This decision offers an important opportunity for reflection for lawyers and professionals in the field, emphasizing the need for a detailed analysis of the concrete circumstances in each bankruptcy case.
