Fraudulent Bankruptcy: Commentary on Judgment Cass. Pen., Section V, No. 41536 of 2024

The judgment of the Court of Cassation no. 41536 of 2024 offers an interesting reflection on the issue of payments made by shareholders for future capital increases, framing them within the context of fraudulent bankruptcy. The Court examined the case of A.A., convicted for returning sums to shareholders while the company was in economic crisis, highlighting the importance of protecting creditors' interests.

The Context of the Judgment

The Court of Appeal of Florence had confirmed the conviction of A.A. for fraudulent bankruptcy, holding that the withdrawals made in favour of shareholders, at a time of company crisis, had compromised the integrity of the share capital and harmed creditors. A.A.'s defence contested the decision based on the alleged legitimacy of the reimbursements, arguing that the company was able to meet its liabilities.

The Court clarified that the reimbursement of payments to shareholders, in the presence of a business crisis, can constitute a crime, as it alters the company's financial situation.

Relevance of Payments for Future Capital Increases

One of the central issues addressed by the Court concerns the qualification of payments for future capital increases. It was emphasized that such payments, while not immediately increasing the share capital, are considered risk capital and cannot be reimbursed until the failure to increase capital is officially declared. This aspect is crucial for determining whether the reimbursements made by A.A. had a legal basis.

• Payments for future capital increases are assimilated to risk capital.
• The right to reimbursement arises only if the capital increase does not occur within a set timeframe.
• Reimbursing such sums during a corporate crisis compromises the creditors' position.

Implications of the Judgment for Legal Professionals

This judgment represents an important reference for lawyers and legal consultants operating in the field of commercial and bankruptcy law. It reiterates the importance of carefully considering reimbursement operations to shareholders during periods of corporate crisis and calls for a rigorous assessment of the legitimacy of such operations. Furthermore, the Court clarified that non-compliance with the rules regarding payments for future capital increases can lead to criminal liability for directors.

Conclusions

In conclusion, judgment no. 41536 of 2024 by the Court of Cassation underscores the importance of protecting creditors' interests and the rigor with which issues related to payments for future capital increases must be handled. Directors must be aware of the legal consequences of their actions, especially in crisis situations, to avoid incurring criminal liability.