Commentary on Judgment Cass. pen. no. 34979 of 2020: Reflections on responsibilities in cases of fraudulent bankruptcy
Judgment no. 34979 of 2020 of the Court of Cassation addressed crucial issues regarding fraudulent bankruptcy and embezzlement, highlighting the responsibilities of both directors and shareholders in financial companies. The decision is part of a complex legal context that deserves in-depth reflection on applicable principles and practical consequences.
Context of the Judgment
The Court of Appeal of Milan had confirmed the responsibility of M.G. and other defendants in relation to acts of fraudulent bankruptcy, emphasizing how the contested operations had caused significant damage to the company Sopaf and its creditors. The decision highlighted the importance of directors' awareness of the company's economic situation, stating that mere imprudence does not exclude criminal liability.
The agent's awareness of engaging in conduct detrimental to the company's assets is fundamental for the commission of the crime of fraudulent bankruptcy.
Responsibility of Directors and Shareholders
A central aspect of the judgment concerns the responsibility of directors in carrying out acts that harm creditors' interests. The Court clarified that, to establish fraudulent bankruptcy, it is sufficient for the agent to have caused a depletion of the company's assets, even if there is no direct link to the subsequent bankruptcy. This implies a careful analysis of the motivations behind corporate decisions.
- Fraudulent bankruptcy is constituted even in the absence of insolvency at the time of the conduct.
- An ex ante evaluation of the choices made by the directors is necessary.
- Responsibility can also extend to shareholders who actively participate in corporate decisions.
Conclusions
Judgment no. 34979 of 2020 offers significant insights for understanding the delicate balance between business management and criminal liability. Directors must be aware of the consequences of their choices, and the pension fund, as the injured party, demonstrates the importance of careful oversight and correct use of resources. It is essential that legal professionals are prepared to face these challenges, thus ensuring more responsible and transparent company management.
