Commentary on Judgment Cass. pen. no. 40752 of 2024: The Administrator's Liability in Fraudulent Bankruptcy

Judgment no. 40752 of 2024 by the Court of Cassation offers important clarifications on the issue of criminal liability of company directors in cases of bankruptcy. In particular, the case under review concerns A.A., a company director, convicted for the irregular and incomplete keeping of accounting records, in the face of a declared bankruptcy. The Court of Appeal of Florence had confirmed the defendant's liability, despite his claim of having relied on the accountant for accounting management.

The Administrator's Role and Culpability in Record Keeping

The Court reiterated a fundamental principle: the administrator is always responsible for the correct keeping of accounting records, even if they engage external professionals. In this context, reference is made to previous case law establishing that simple bankruptcy is also punishable due to negligence. Relying on a professional does not exempt the administrator from their duties of supervision and control.

The administrator cannot neglect accounting matters, otherwise they incur criminal liability.

The Appellant's Objections and the Assessment of Culpability

A.A. filed an appeal, arguing that the Court of Appeal had not adequately considered his good faith and the fact that he had subsequently tried to remedy the accounting errors. However, the Court of Cassation noted that the mere request for help from another professional, after discovering irregularities, was not sufficient to eliminate the wrongfulness of the initial conduct. Criminal liability is not limited to the ascertainment of damages but extends to the supervision and correctness of accounting management.

• Personal liability of the administrator
• Culpability in record keeping
• Duty of supervision even over external professionals

Conclusions

Judgment no. 40752 of 2024 underscores the importance of individual responsibility of directors in the corporate sphere, especially in crisis situations such as bankruptcy. Case law is clear: reliance on third parties does not exempt from the burden of supervision and control. The principles established by the Court of Cassation can serve as a warning to directors, so that they act proactively in managing accounting records and supervising company operations, thereby ensuring the transparency and correctness necessary for the protection of creditors.