Fraudulent Bankruptcy: Commentary on Judgment No. 14932 of 2023
The recent judgment No. 14932 of February 28, 2023, issued by the Court of Cassation, offers an important reflection on the discipline of fraudulent bankruptcy and, in particular, on the configurability of so-called "repaired bankruptcy." This decision, involving the defendant E. M., has highlighted crucial aspects regarding restitutions and payments made before bankruptcy, elements of fundamental importance in Italian bankruptcy law.
The Concept of 'Repaired' Bankruptcy
According to the Court, for the configurability of "repaired" bankruptcy, the restitution of individual assets misappropriated is not necessary, but it is sufficient that the payments made into the company's accounts before bankruptcy exactly correspond to the fraudulent acts perpetrated. This principle is of great relevance, as it offers a possibility of safeguard for the entrepreneur who, despite having committed fraudulent acts, manages to reintegrate the company's assets with equivalent payments.
- Restitution of assets not necessary
- Importance of payments to the company
- Exact correspondence between fraudulent acts and payments
The Specific Case and Legal Implications
In the case examined, the Court censured the decision of the Court of Appeal of Ancona, which had convicted the defendant for fraudulent bankruptcy by misappropriation. The Court of Cassation highlighted that an adequate assessment of the defendant's claims was not made, particularly regarding severance pay and other salary items. This aspect is crucial, as the correct consideration of sums saved by the company and the bankruptcy proceedings is fundamental for assessing the entrepreneur's liability.
"Repaired" Bankruptcy - Configurability - Restitution of individual assets misappropriated - Necessity - Exclusion - Exact correspondence between payments made and fraudulent acts perpetrated - Sufficiency - Case law. For the configurability of "repaired" bankruptcy, the restitution of individual assets misappropriated is not necessary, but it is required that payments into the company's accounts, made before bankruptcy in order to reintegrate previously prejudiced assets, exactly correspond to the fraudulent acts previously perpetrated. (Case law in which the Court censured the conviction for the crime of fraudulent bankruptcy by misappropriation, which, without assessing the merits of the defendant's "claims," subject of a settlement agreement - specifically, the amount of entitlements claimed as severance pay and other salary items, their "position" relative to admitted claims in the bankruptcy proceedings, and therefore the sums saved by the company and the bankruptcy proceedings - considered insufficient the restitution of a sum exceeding the value of the assets subject to misappropriation, but less than the amount of the losses).
Conclusions
In conclusion, judgment No. 14932 of 2023 represents a significant step in the jurisprudence on fraudulent bankruptcy. It clarifies that the mere restitution of misappropriated assets is not the sole criterion for assessing the entrepreneur's liability, but that it is fundamental to also consider payments made to reintegrate the company's assets. This decision offers an important opportunity for reflection for lawyers and professionals in the field, emphasizing the need for a detailed analysis of the concrete circumstances in each bankruptcy case.
