Fraudulent Bankruptcy: Commentary on Judgment Cass. pen., Section V, No. 35698 of 2024

The judgment of the Court of Cassation of September 23, 2024, No. 35698, addresses crucial issues concerning fraudulent bankruptcy, particularly the distinction between the omission and irregular keeping of accounting records. The Court, partially upholding the appeal of A.A., provided significant clarifications for the legal qualification of conduct in bankruptcy matters.

The Case Under Review

A.A. was the administrator and liquidator of the company Museo del Tempo Srl, declared bankrupt in 2021. The Court of Appeal of Rome had confirmed the conviction to one year and four months of imprisonment for fraudulent bankruptcy, highlighting the submission of partial accounting documentation. In particular, the appellant argued that the accounting records had not been completely destroyed, but only not preserved, which should have led to a different legal qualification of the conduct.

The Court clarified that the omission of keeping accounting records constitutes a separate offense from irregular keeping, requiring a different approach in assessing intent.

Differences Between Omission and Irregular Keeping

The Court emphasized the importance of distinguishing between:

• Omission of Keeping: refers to the total absence of accounting records, implying a specific intent to prejudice creditors.
• Irregular Keeping: implies that the records exist but present anomalies, requiring a general intent.

This distinction is fundamental for the application of the provisions of Article 216 of the bankruptcy law, which governs the various types of fraudulent bankruptcy. The Court of Cassation reiterated that the determination of intent must be supported by factual elements demonstrating the intention to harm creditors.

Conclusions

Judgment No. 35698 of 2024 represents an important development in jurisprudence on the subject of fraudulent bankruptcy. The Court recognized the importance of a correct legal qualification of conduct, requiring an exact reconstruction of the offense. This approach not only offers clarity to legal professionals but also ensures greater protection for creditors, ensuring that responsibilities are appropriately attributed based on the actual conduct of administrators. The issue of the proper keeping of accounting records therefore remains central in the landscape of bankruptcy law.