Analysis of Judgment Cass. pen., Section I, no. 36521 of 2024: liability for fraudulent bankruptcy

The recent judgment of the Court of Cassation, number 36521 of 2024, has provided important clarifications regarding the criminal liability of directors in situations of fraudulent bankruptcy. In particular, the case concerned A.A., who, despite not formally holding the position of director at the time of the bankruptcy of the company Pavis Srl, was held liable for illicit conduct by virtue of his de facto director status.

Context of the Judgment

The Court of Appeal of Salerno had confirmed A.A.'s conviction for fraudulent bankruptcy, albeit reducing the sentence imposed. The main reason for the conviction was based on his conduct during the period when he was the de jure director, from 2003 to 2008, and on his de facto management of the company even after the cessation of his office.

The appealed judgment confirmed the finding of liability by re-determining the imposed penalty to the extent indicated above, confirming, in the rest, the conviction rendered by the Court of Potenza.

The Court's Arguments

The Court of Cassation deemed the grounds for appeal filed by A.A. unfounded, highlighting that liability for fraudulent bankruptcy can also be attributed to those who have played an active role in the management of the company, even in the absence of a formal position. In particular, the Court emphasized that:

• Significant debts had been accumulated during the period when A.A. was the de jure director.
• The transfer of company shares occurred in a context of insolvency, highlighting the intention to conceal assets from creditors.
• The accounting records were never handed over to the new directors, making it impossible to reconstruct the company's turnover.

The Court also recalled that, according to case law, a de facto director is someone who, despite not being formally invested with the office, actually exercises the management functions of the company.

Conclusions

The judgment under review highlights the importance of transparent and responsible company management, especially for those in managerial roles. The Court of Cassation has clarified that liability for fraudulent bankruptcy is not limited to de jure directors but can extend to those who perform de facto functions, emphasizing the need for careful oversight and regular accounting to avoid incurring heavy criminal penalties.