Commentary on Judgment No. 14405 of 2024: Improper Fraudulent Bankruptcy and Business Branch Lease

Judgment No. 14405 of January 30, 2024, issued by the Court of Cassation, addresses a matter of significant importance in the context of bankruptcy offenses, particularly regarding the configurability of improper fraudulent bankruptcy from fraudulent transactions. This decision offers important clarifications on the conduct of leasing a business branch and its related legal consequences.

Context of the Judgment

In the specific case, the Court examined the situation of a company that leased its sole business branch for a fee that was deemed incongruous and only partially collected. The central issue was whether, at the time of concluding the contract, the company was capable of carrying out its typical business activities and generating income comparable to that derived from the lease operation.

Improper fraudulent bankruptcy from fraudulent transactions - Lease of a business branch - Configurability - Existence - Conditions. In the context of bankruptcy offenses, improper fraudulent bankruptcy from fraudulent transactions (in this case, the lease of the sole business branch for an incongruous fee collected only in part) is configurable if it is found that the company, at the time of concluding the contract, was capable of carrying out its typical business activities and, therefore, of producing income comparable to that derivable from the operation, by using the transferred assets "ex se."

Conditions for Configurability

According to the Court's ruling, for improper fraudulent bankruptcy to be configurable, certain fundamental conditions must be met:

• The company must be capable of carrying out its typical business activities at the time of concluding the contract;
• It must be capable of producing income comparable to that derived from the lease operation;
• The lease fee must be considered incongruous with respect to the economic value of the leased business branch.

These conditions are crucial for determining whether the lease operation can be considered fraudulent and, therefore, subject to criminal penalties.

Legal and Jurisprudential Implications

This judgment is part of a broader jurisprudential context aimed at defining the boundaries of criminal liability in cases of bankruptcy offenses. The Court referenced specific provisions, such as Article 216 of the Bankruptcy Law, which govern conduct considered unlawful in bankruptcy proceedings.

It is therefore affirmed that transactions that may appear legitimate, such as leasing a business branch, can conceal fraudulent intent, especially if they do not comply with the aforementioned conditions.

Conclusions

Judgment No. 14405 of 2024 represents a significant step forward in the fight against fraudulent conduct in bankruptcy proceedings. It underscores the importance of careful analysis of commercial transactions and the need to ensure they comply with current laws. The correct application of regulations can help protect creditors' interests and maintain market integrity.