Commentary on Judgment No. 36416 of 2023: Director and Withdrawal of Compensation in a State of Insolvency

Judgment No. 36416 of May 11, 2023, issued by the Court of Cassation, offers an important reflection on the rights and duties of directors of capital companies in situations of insolvency. In particular, the ruling focuses on the issue of withdrawing money as compensation, carried out in the absence of a shareholders' resolution or a statutory provision. This topic is crucial not only for understanding the liability of directors but also for the classification of fraudulent bankruptcy offenses.

The Regulatory Framework and the Role of Directors

The Bankruptcy Law, particularly Article 216, provides the regulatory basis for the classification of bankruptcy offenses, distinguishing between preferential bankruptcy and fraudulent bankruptcy. Directors, as established by Article 2389 of the Civil Code, are entitled to compensation for their activities, but this right must be duly formalized. In the absence of such formalization, withdrawals made by directors may constitute unlawful acts, with criminal consequences.

Criteria for Identifying Bankruptcy

Director of a capital company - Withdrawal as compensation for activities performed in the absence of a shareholders' resolution or statutory provision - Preferential bankruptcy or bankruptcy by misappropriation - Identification - Criteria. Regarding fraudulent bankruptcy, it is incumbent upon the trial judge to ascertain whether, in the absence of a shareholders' resolution or statutory quantification of compensation for the activity performed, to which the person who has duly accepted the office of director of a capital company is entitled, the withdrawal by the latter of money from the company's coffers in a state of insolvency constitutes the crime of preferential bankruptcy or, conversely, that of fraudulent bankruptcy by misappropriation, depending on whether the right to compensation is related or not to an actual performance and whether the withdrawal is or is not commensurate with the commitment made.

This summary clarifies how the judge must evaluate each individual case, taking into account the appropriateness of the compensation in relation to the actual activity performed. If the withdrawal is not justified by a real performance, it constitutes a case of fraudulent bankruptcy by misappropriation.

Conclusions

Judgment No. 36416 of 2023 represents an important reference point for legal professionals and company directors. It emphasizes the importance of proper formalization of compensation and the attention that must be paid to the financial management of companies in a state of insolvency. In a complex economic context, clarity in the rights and duties of directors can prevent crisis situations and legal problems, while simultaneously protecting the interests of shareholders and creditors.