Cass. pen., Section V, Judgment no. 16115 of 2024: Reflections on Fraudulent Bankruptcy

Judgment no. 16115 of 2024 issued by the Court of Cassation focused on a case of fraudulent bankruptcy, confirming the convictions handed down in the first and second instances. This article aims to analyze the salient points of the decision, particularly regarding the subjective element of the fraudulent bankruptcy offense and its implications for directors of bankrupt companies.

Context of the Judgment

In the specific case, the defendant A.A., director of two bankrupt companies, was convicted of fraudulent bankruptcy involving misappropriation and document falsification. The Court of Appeal of Milan had already confirmed the defendant's liability, finding that the absence of regular accounting records prevented the reconstruction of the companies' financial affairs.

The Court of Cassation reiterated that general intent is sufficient to constitute the offenses of fraudulent bankruptcy, without the need to demonstrate a direct causal link between the misappropriation of assets and the bankruptcy.

Subjective Elements of Fraudulent Bankruptcy

The Court highlighted that, for the offense of fraudulent bankruptcy to be established, it is not necessary to prove the director's awareness of the company's insolvency. It is sufficient to ascertain that the agent voluntarily diverted company resources to purposes unrelated to the business activity, thereby causing a depletion of assets.

• Recognition of general intent as the subjective element of the offense.
• Inadequacy of the defense in identifying specific indices of fraud.
• Confirmation of liability for omission in maintaining accounting records.

Implications for Directors

This judgment serves as an important reminder of the obligations of company directors. The Court's interpretation emphasizes that liability is not limited to the active management of resources but also extends to the proper maintenance of necessary accounting documentation. Negligent management can lead to significant criminal consequences, as evidenced by the conviction received by the defendant.

Conclusions

In conclusion, judgment no. 16115 of 2024 by the Court of Cassation further clarifies the configuration of the offense of fraudulent bankruptcy, establishing that general intent is sufficient for conviction. Directors must be aware of their responsibility, not only in the active management of resources but also in the proper preservation and maintenance of accounting records. Vigilance in these areas is crucial to avoid severe criminal penalties and ensure transparency in business operations.