Commentary on Judgment No. 4004 of 2024 of the Court of Appeal of Rome: Implications of Fraudulent Documentary Bankruptcy

The recent judgment no. 4004 issued by the Court of Appeal of Rome on April 22, 2024, offers significant food for thought regarding the liability of company directors in cases of fraudulent documentary bankruptcy. In this case, the defendant F.A. was convicted for failing to keep the accounting records of the company L.A. S.c.a.r.l., thereby contributing to serious prejudice for creditors.

Circumstances of the Case

The Court of Rome had already found F.A. guilty of fraudulent bankruptcy, stating that although he was the formal director, he had never played an active role in the company's management. The Court of Appeal, in partially overturning the judgment, acknowledged that the defendant could be considered a mere frontman, lacking the necessary skills to manage the company and unaware of the responsibilities associated with his position.

The conduct attributed to the defendant is that of having "removed, concealed, or failed to keep" the company's books and accounting records, in the context of a broader fraud.

Legal Implications

• Directors' Liability: The judgment highlights that criminal liability cannot be automatic but must be based on the defendant's awareness and specific intent in contributing to the offense.
• Distinction between Fraudulent Bankruptcy and Simple Bankruptcy: The Court held that F.A.'s conduct should be classified as the less serious offense of simple bankruptcy, thus giving greater weight to the lack of fraudulent intent.
• Role of Frontman: The figure of the frontman, while a legal risk, does not automatically imply liability for fraudulent acts if there is no proof of awareness of the criminal plan.

Conclusions

Judgment no. 4004 of 2024 offers a clear view of the legal responsibilities related to company management, especially in contexts of bankruptcy. It emphasizes the importance of distinguishing between the various forms of bankruptcy and the need to prove the director's awareness in contributing to such offenses. The decision of the Court of Appeal of Rome invites broader reflection on managerial roles and transparency in business management.