Fraudulent Bankruptcy and Illegitimate Withdrawals: Commentary on Judgment No. 33063 of 2024

Judgment No. 33063 of June 5, 2024, filed on August 23, 2024, offers an important reflection on the liability of directors in cases of fraudulent bankruptcy. In particular, the judges have established that the withdrawal of sums intended for a worker's severance pay, or for the payment of a loan granted to the latter, constitutes a act of misappropriation and amounts to fraudulent bankruptcy. This principle is of fundamental importance for the protection of workers' rights and for safeguarding company assets.

Director's Conduct and Fraudulent Bankruptcy

According to the Court, the director of a bankrupt company who withdraws sums intended for the payment of employee rights acts unlawfully. The ruling's maxim states:

Sums intended for employee severance pay or for the payment of a loan granted to the latter - Director's withdrawal from the social funds of the bankrupt company - Fraudulent bankruptcy due to misappropriation - Configurability - Existence - Reasons. In the context of fraudulent patrimonial bankruptcy, the conduct of the director of a bankrupt company who withdraws sums from the social funds intended for the payment of a worker's severance pay, or for the payment, following the assignment of the credit in favor of the company, of installments of a loan granted to an employee, constitutes misappropriation, as these sums are part of the assets of the bankrupt company.

This statement underscores the importance of protecting workers' rights, which can be compromised by irresponsible decisions of directors. Italian laws, particularly Article 216 of the Bankruptcy Law, clearly establish responsibilities in cases of fraudulent bankruptcy. The judges, therefore, not only protect the rights of creditors but also those of employees.

Implications of the Judgment and Regulatory References

The judgment is part of a broader legal context, in which the Constitutional Court and case law have repeatedly reaffirmed the importance of directors' liability in the event of bankruptcy. The provisions referred to in the decision, particularly Article 223 of the Bankruptcy Law, emphasize the need for prudent and transparent management of company resources.

• Article 216, paragraph 1: liability in cases of fraudulent bankruptcy;
• Article 216, paragraph 2: criteria for the configurability of such a crime;
• Article 223: transparency obligations and directors' responsibilities.

Conclusions

In conclusion, judgment No. 33063 of 2024 represents an important step in the fight against fraudulent bankruptcy and in strengthening the protection of workers' rights. It highlights the need for ethical conduct by directors, who must always act in the best interests of the company and its employees. Decisions of this type serve as a deterrent to unlawful behavior and promote a culture of responsibility and compliance with regulations.