Analysis of Judgment No. 26886 of 2024: Fraudulent Bankruptcy and Composition with Creditors

The recent judgment No. 26886 of March 8, 2024, by the Court of Cassation offers an important reflection on the theme of fraudulent bankruptcy, particularly on its application in the context of composition with creditors. The decision, presided over by A. G., and reported by M. B., is part of a highly topical legal debate concerning the compatibility of current regulations with constitutional principles.

Fraudulent Bankruptcy and Composition with Creditors: The Regulatory Framework

The issue of fraudulent bankruptcy, governed by Article 236 of the bankruptcy law, provides for specific sanctions for the illicit conduct of those managing a company in a state of insolvency. The judgment in question focuses on the equivalence between fraudulent bankruptcy in insolvency proceedings and fraudulent bankruptcy in the context of composition with creditors. The legislator has stipulated that even in the case of composition with creditors, which aims to ensure the payment of creditors, fraudulent conduct is punished with the same severity.

The Question of Constitutional Legitimacy

A crucial aspect of the judgment is the affirmation of the manifest groundlessness of the question of constitutional legitimacy raised in relation to Articles 3 and 27 of the Constitution. This means that the Court found no violation of the principles of equality and the personal nature of criminal liability. In fact, composition with creditors and bankruptcy proceedings share a collective and liquidation dimension, thus justifying uniform sanctioning treatment. In this regard, the Court stated:

Fraudulent bankruptcy - Fraudulent bankruptcy "from composition with creditors" - Equivalence of sanctioning treatment pursuant to art. 236, paragraph 2, no. 1, bankruptcy law - Question of constitutional legitimacy - Manifest groundlessness - Reasons. Regarding bankruptcy offenses, the question of constitutional legitimacy, in relation to Articles 3 and 27 of the Constitution, of Article 236, paragraph 2, no. 1, of the bankruptcy law, is manifestly unfounded, in that it imposes the same sanctioning treatment provided for fraudulent bankruptcy for fraudulent bankruptcy "from composition with creditors" as well, since composition with creditors, like bankruptcy proceedings, also has a collective and potentially liquidation dimension.

Implications and Conclusions

Judgment No. 26886 of 2024 represents an important step forward in defining the sanctioning regime applicable to bankruptcy offenses. The clear equivalence between fraudulent bankruptcy and that from composition with creditors confirms the legislator's intention to protect creditors' rights and ensure fairness in corporate crisis management procedures. Furthermore, the affirmation of the constitutional legitimacy of the sanctioning treatment provided by the bankruptcy law contributes to strengthening legal certainty and confidence in the legal system.