Documentary Fraudulent Bankruptcy: Reflections on Judgment No. 25034/2023

Judgment No. 25034 of March 16, 2023, issued by the Court of Cassation, offers an important reflection on documentary fraudulent bankruptcy and the consequences of concealing accounting records. This ruling highlights how such conduct can preclude the application of mitigating circumstances, significantly altering the legal landscape concerning bankruptcy offenses.

The Case and the Court's Decision

The case refers to a charge of documentary fraudulent bankruptcy against A. C., involving the concealment of accounting records. The Court rejected the appeal, confirming that the concealment of accounting documents does not allow for the invocation of the mitigating circumstance of damage of special insignificance, as provided for by Article 219, paragraph 3, of the bankruptcy law.

Documentary fraudulent bankruptcy - Concealment of accounting records - Pecuniary damage of special insignificance - Configurability - Exclusion - Reasons - Factual situation. In the context of documentary fraudulent bankruptcy, the concealment of accounting records does not allow for the application of the mitigating circumstance of damage of special insignificance, provided for by art. 219, paragraph 3, bankruptcy law, when, by making the reconstruction of the management facts of the bankrupt company impossible, it prevents the very demonstration of the damage caused to the creditor mass as a result of the impact that the conduct constituting the offense has had on the possibility of exercising clawback actions and other actions protecting creditor interests. (Factual situation in which the Court excluded that the damage caused was particularly insignificant due to the high amount of the ascertained liabilities, which suggested that the company's size was not limited).

Implications for Businesses and Professionals

This judgment has significant implications for businesses and professionals operating in the sector. It is crucial to understand that:

• The concealment of accounting records can lead to serious legal consequences, including the inability to benefit from mitigating circumstances.
• Transparent management of accounting records is essential to prevent the commission of bankruptcy offenses.
• The size of the company and its related liabilities are determining factors in assessing the damage caused, as indicated by the Court.

Furthermore, lawyers and legal consultants must pay particular attention to their clients' accounting management practices to avoid situations that could lead to criminal liability.

Conclusions

In conclusion, judgment No. 25034 of 2023 by the Court of Cassation represents a clear warning regarding the importance of transparency in the management of accounting records. The decision emphasizes how the concealment of such documents not only compromises the ability to demonstrate the damage suffered by creditors but can also preclude the applicability of mitigating circumstances. For businesses and professionals, it is essential to adopt rigorous accounting management practices to ensure their legal security and the protection of creditor interests.