Improper Bankruptcy from Fraudulent Transactions: Commentary on Judgment No. 16111 of 2024

The recent judgment No. 16111 of 2024 by the Court of Cassation offers important clarifications on the configuration of improper bankruptcy due to fraudulent transactions. In particular, the Court has established that, to prove this specific offense, specific intent is not necessary; rather, general intent is sufficient, meaning awareness of the individual transactions and the foreseeability of insolvency as a consequence of the wrongful conduct.

Regulatory Context

Italian bankruptcy law, particularly Article 223, paragraph 2, letter 2, establishes the basis for the configuration of improper bankruptcy. The Constitutional Court and established jurisprudence have contributed to outlining the current regulatory framework. The judgment under review follows a path already laid out by previous decisions, such as No. 12945 of 2020 and No. 19101 of 2004, which have addressed the issue of intent in relation to fraudulent transactions.

The Meaning of General Intent

Improper bankruptcy from fraudulent transactions - Psychological element - General intent relating to individual transactions and foreseeability of insolvency as a consequence of wrongful conduct - Sufficiency - Fraudulent causation of bankruptcy - Specific intent - Necessity - Factual circumstances. For the configuration of improper bankruptcy from fraudulent transactions, specific intent aimed at causing the bankruptcy does not need to be proven, but only general intent, i.e., the consciousness and will of the individual transactions and the foreseeability of insolvency as a consequence of the wrongful conduct. (In this case, systematic and prolonged non-fulfillment of tax and social security obligations resulting from a conscious management choice).

The concept of general intent refers to the defendant's awareness and will regarding the transactions carried out, and their continuation over time. This implies that an entrepreneur can be held liable for improper bankruptcy even in the absence of a direct intent to cause the company's failure, provided it is proven that their actions contributed to creating a foreseeable situation of insolvency.

Practical and Jurisprudential Implications

The practical implications of this judgment are significant for all entrepreneurs and professionals in the sector. It is essential that management decisions are guided by correctness and transparency, avoiding behaviors that may lead to tax or social security defaults. Awareness of these responsibilities is crucial to prevent serious legal consequences.

In conclusion, judgment No. 16111 of 2024 represents an important step forward in defining criminal liability in cases of improper bankruptcy, highlighting the centrality of general intent and the need for transparent business management.