Commentary on Judgment No. 39139 of 2023: Fraudulent Bankruptcy and Return of Capital Contributions

Judgment No. 39139 of June 23, 2023, issued by the Court of Cassation, addresses a crucial issue in bankruptcy law: the configurability of the crime of fraudulent bankruptcy in relation to contributions for future capital increases. This ruling offers food for thought not only for legal practitioners but also for entrepreneurs and company partners, who must fully understand the consequences of their actions in a context of financial crisis.

Context of the Judgment

The Court ruled on the issue concerning the return to partners of sums contributed before the deadline set for the approval of the capital increase. According to the ruling, the return of sums contributed towards a future capital increase, before the established deadline or in the absence of a deadline, constitutes the crime of fraudulent patrimonial bankruptcy.

Contribution towards future capital increase - Return to partners of sums contributed before the deadline set for the approval of the capital increase - Return of sums contributed in the absence of a deadline for the approval of the capital increase - Fraudulent bankruptcy for misappropriation - Configurability - Existence - Reasons. In the context of bankruptcy offenses, the crime of fraudulent patrimonial bankruptcy is constituted both by the return to partners of payments contributed towards a future capital increase, before the expiry of the deadline, agreed or set by the judge, for the approval of the planned capital increase, and by the return made, in the absence of such a deadline, during the company's existence. (In its reasoning, the Court clarified that contributions towards future capital increases, by becoming part of the company's assets, constitute, in case of the company's insolvency, a guarantee of creditors' right to be informed about the company's financial conditions, so that only upon the failure to adopt the resolution for the capital increase within the set deadline does the right of the contributing partners to the return of the sums arise, while, if no deadline is established, the sums must remain tied to covering the capital increase).

Implications for Partners and Creditors

This judgment highlights the importance of transparency and correctness in the management of corporate resources. Contributions towards capital increases, being an integral part of the company's assets, must remain committed to guarantee creditors, especially in the presence of insolvency. The implications for partners can be significant:

• Risk of criminal liability in case of premature return of contributions.
• Need for careful planning of capital increase operations.
• Importance of respecting the deadlines and procedures established by law.

Conclusions

Judgment No. 39139 of 2023 represents an important clarification in the jurisprudence on fraudulent bankruptcy. It highlights how the return of sums contributed towards a future capital increase can constitute a crime, thus emphasizing the responsibility of those who manage a company. It is essential that partners and directors understand the risks associated with managing corporate resources, particularly in crisis situations, to avoid incurring criminal sanctions and to safeguard the interests of all stakeholders involved.