Fraudulent Bankruptcy: Analysis of Supreme Court Judgment Cass. Pen., Section V, No. 27703/2024
Judgment No. 27703 of 2024 by the Court of Cassation addresses crucial issues related to fraudulent bankruptcy, particularly concerning preferential conduct during the insolvency phase. The decision, issued by the Fifth Criminal Section, sheds light on the requirements for establishing the crime of bankruptcy, within a bankruptcy law context that continues to raise questions.
Legal Context of Fraudulent Bankruptcy
Fraudulent bankruptcy is a crime governed by Article 216 of the Bankruptcy Law, which punishes the conduct of an entrepreneur who, aware of their insolvency, favors certain creditors over others. In the judgment under review, the case concerned A.A., the legal representative of the company Ge. Im. Ed. Srl, declared bankrupt in 2016. The contested transactions included preferential payments and the return of down payments, made in a context of the company's economic difficulties.
The Court clarified that the offsetting of debts and credits can constitute the crime of preferential bankruptcy if it occurs during the insolvency phase and favors certain creditors.
Analysis of the Judgment
- The Court confirmed A.A.'s conviction for preferential fraudulent bankruptcy, highlighting that the payment transactions were made when the company was already in a state of insolvency.
- The defense argued that the payments represented contractual fulfillments, but the Court emphasized that this justification did not exempt them from the charge of favoritism towards specific creditors.
- Regarding documentary bankruptcy, it was highlighted that the defense's lack of reasoning did not support the request for exclusion of liability.
Conclusions
Judgment No. 27703 of the Court of Cassation represents an important reference point for jurisprudence on fraudulent bankruptcy. It underscores how the entrepreneur's awareness of their insolvency and the payment methods used can constitute criminally relevant conduct. The decision offers interesting insights not only for legal professionals but also for entrepreneurs, who must be aware of the legal implications of their actions in situations of corporate crisis.
