Judgment No. 21097/2023: Fulfillment of Obligation in Fraudulent Insolvency

The recent judgment No. 21097 of May 10, 2023, by the Court of Cassation has provided important clarifications regarding the fulfillment of obligations within the context of the crime of fraudulent insolvency, governed by Article 641 of the penal code. This ruling is part of a complex legal landscape where the distinction between fulfillment of the obligation and compensation for damages plays a crucial role in the defense of defendants.

Context of the Judgment

The Court annulled, without referral, a decision by the Court of Appeal of Palermo, reiterating that the full fulfillment of the obligation that extinguishes the crime must occur before a final conviction. However, it was clarified that such fulfillment can also take place after first or second-instance judgments, up until the decision on the appeal to the Court of Cassation. This legal interpretation opens up new possibilities for defendants seeking to rectify their situation.

• The deadline for fulfillment must be identified before the final conviction.
• Fulfillment can also occur during the appeal phase.
• Compensation for damages must occur before the trial.

The Ruling's Maxim

Fulfillment of the obligation that extinguishes the crime - Deadline - Identification. In the context of fraudulent insolvency, the full fulfillment of the obligation that extinguishes the crime, as referred to in Article 641, paragraph two, of the penal code, must be arranged and received before a final conviction and can, therefore, be implemented even after a first or second-instance judgment and until the appeal to the Court of Cassation has been decided. Conversely, compensation for damages, which is suitable for constituting the mitigating circumstance referred to in Article 62, no. 6, of the penal code, must occur "before the trial."

This maxim highlights a fundamental aspect: while the fulfillment of the obligation can occur even after a judgment, compensation for damages must be made before the start of the proceedings. This means that individuals facing a situation of fraudulent insolvency have the opportunity to remedy it and avoid criminal consequences, even in phases subsequent to the first-instance judgment.

Conclusions

Judgment No. 21097 of 2023 represents an important reference point for Italian jurisprudence on fraudulent insolvency. It clarifies not only the deadlines for fulfilling criminal obligations but also the substantial differences compared to compensation for damages, thus providing useful tools for the defense of defendants. This decision prompts reflection on the importance of a flexible interpretation of norms, capable of considering the real possibilities of remedying situations of economic difficulty without precluding the right to justice.