Commentary on Judgment Cass. pen., Section V, no. 12499 of 2023: Simple Bankruptcy and Subjective Element

The recent judgment of the Court of Cassation, no. 12499 of 2023, offers interesting insights into the crime of simple bankruptcy and the requirements necessary to establish the subjective element of the crime. In this article, we will analyze the reasons for the decision, the importance of keeping accounting records, and the application of Article 131 bis of the Italian Criminal Code regarding grounds for non-punishability.

The Context of the Judgment

The case in question concerns A.A., convicted of simple bankruptcy as the administrator of a company declared bankrupt. The Court of Appeal of Florence had confirmed the conviction, but A.A. appealed to the Court of Cassation, arguing that the subjective element necessary for the commission of the crime was absent due to an error of law.

The Court clarified that an error regarding the nature of a precept constituting the criminal offense is to be considered inexcusable.

The Issue of the Subjective Element

One of the crucial points of the judgment is the issue of the subjective element of the crime of simple bankruptcy. A.A. claimed to have acted in good faith, believing he was not required to keep accounting records since the company was no longer operational. However, the Court reiterated that an error concerning non-criminal law regulating the obligation to keep accounting records is considered inexcusable. This is in line with previous case law, which highlights that the misinterpretation of non-criminal provisions cannot exclude the criminal liability of the defendant.

Grounds for Non-Punishability and Assessment of the Insignificance of the Act

Another interesting aspect of the judgment concerns the grounds for non-punishability provided for by Article 131 bis of the Italian Criminal Code. The Court emphasized that, despite simple bankruptcy being a crime of danger, this does not preclude the possibility of applying this ground for non-punishability. However, the Court of Appeal's reasoning for refusing to apply this ground was considered unsatisfactory, suggesting the need for a more in-depth assessment of the specific circumstances of the case.

• Inexcusable error of law regarding the keeping of accounting records.
• Possibility of applying grounds for non-punishability even for crimes of danger.
• Need for more detailed reasoning by the referring judge.

Conclusions

Judgment no. 12499 of 2023 by the Court of Cassation reiterates the importance of keeping accounting records for company administrators and clarifies the boundaries of the subjective element in the crime of simple bankruptcy. Furthermore, it offers a reflection on the need to carefully assess grounds for non-punishability, leaving open the possibility of a new review by the Court of Appeal of Florence. This decision represents an important step towards increasingly attentive and rigorous case law in the field of bankruptcy law and administrator liability.