Fraudulent bankruptcy: commentary on judgment Cass. pen., Section V, no. 39730/2024

The recent judgment of the Supreme Court of Cassation, Criminal Section V, no. 39730 of October 29, 2024, addressed the delicate issue of fraudulent patrimonial bankruptcy, confirming the liability of A.A. and B.B., members of the board of directors of a bankrupt company. The decision revolves around the issue of the misappropriation of real estate and their donation to a political figure, analyzing the legal implications and the methods of ascertaining the crime.

Context of the judgment

The Court examined the case of A.A. and B.B., accused of misappropriating real estate in the context of the bankruptcy of Società Edilizia Romana Spa. The appellants argued that the transactions were carried out to obtain tax advantages and had not caused damage to creditors, invoking the company's patrimonial soundness at the time of the donations. However, the Court of Cassation emphasized that the crime of fraudulent bankruptcy is constituted not only in the presence of actual damage, but also by conduct capable of endangering creditors' interests.

The conduct of misappropriating assets from the company's assets leads to the violation of creditors' interest in the preservation of patrimonial consistency.

Legal principles and assessment of conduct

Regarding criminal liability, the Court reaffirmed that general intent is sufficient for the constitution of fraudulent bankruptcy. It is not necessary to prove that the act caused immediate damage, but it is sufficient to demonstrate awareness of the potential harm to creditors' interests. Furthermore, the assessment of conduct must consider the actual patrimonial situation of the company and the nature of the transactions carried out.

• The gratuitousness of the stipulated acts implies a conscious will to remove assets from the company's assets.
• Each act of disposition must be evaluated in relation to its impact on the creditors' patrimonial guarantee.
• The debtor position towards a mortgagee must be considered in the calculation of patrimonial soundness.

Conclusions

The judgment under review represents an important reminder for directors of companies in crisis. It clarifies that criminal liability for fraudulent bankruptcy does not depend solely on the actual damage caused, but on the potential riskiness of the operations carried out. Directors must therefore adopt conduct characterized by the utmost caution and transparency, in order to preserve creditors' interests and avoid criminal consequences. The Court has shown that, even in the presence of apparent patrimonial soundness, operations that can compromise the company's assets are liable to be criminally sanctioned.