Fraudulent Bankruptcy and Judicial Error: Commentary on Judgment No. 38136 of 2024

Judgment No. 38136 of 2024 by the Court of Cassation, issued on July 12, 2024, represents an important milestone in the jurisprudence concerning fraudulent bankruptcy. In this case, A.A., sole director of the company S.G. Società cooperativa, was initially convicted of improper fraudulent bankruptcy. However, the Court upheld the appeal, highlighting deficiencies in the reasoning of the judgment by the Court of Appeal of Turin, which had partially reformed the first-instance decision.

Context of the Judgment

The Court of Appeal had deemed A.A.'s offense to be improper fraudulent bankruptcy, for failing to promptly request the company's insolvency, a decision that the Court of Cassation found to be unfounded. The scarce reasoning and the failure to examine the subjective element of the crime raise important questions about the distinction between different types of bankruptcy offenses.

The Court of Cassation emphasized that the burden of providing reasoning is crucial in criminal proceedings, especially in complex cases such as those involving bankruptcy.

Differences Between Simple and Fraudulent Bankruptcy

The judgment clarifies the differences between the types of bankruptcy offenses. Specifically:

• Improper fraudulent bankruptcy (Art. 217, para. 1, no. 4, Bankruptcy Law): punishable for gross negligence, manifested through a conscious omission in requesting insolvency.
• Simple bankruptcy (Art. 224, para. 1, no. 2, Bankruptcy Law): constituted by the non-observance of legal obligations, with more specific responsibility for the violation of legal provisions.

The distinction is fundamental because the criminal consequences and liabilities vary significantly. The Court of Cassation highlighted that, to establish fraudulent bankruptcy, it is necessary to demonstrate gross negligence, which cannot be inferred simply from the delay in requesting insolvency.

Conclusions

The decision of the Court of Cassation prompts reflection on the need for solid and coherent reasoning by judges, especially in highly complex cases such as those related to bankruptcy. Judgment No. 38136 of 2024 not only annuls the previous decision but remands the case to the Court of Appeal to carefully and rigorously examine the constituent elements of the alleged crime, thereby ensuring a fair trial and adequate protection of the defendants' rights.