Fraudulent bankruptcy: Analysis of Supreme Court ruling no. 34811 of 2024

The recent intervention of the Supreme Court of Cassation, with ruling no. 34811 of September 16, 2024, has highlighted crucial aspects of fraudulent bankruptcy, particularly regarding the figure of the de facto director. The ruling focuses on the case of A.A., convicted of documentary fraudulent bankruptcy due to insufficient accounting records, emphasizing criminal liability related to company management.

Context of the ruling

The Court of Appeal of Milan had confirmed A.A.'s conviction for having removed the accounting records of the company ERRE 8 Srl, thereby worsening the creditors' position and hindering the verification operations by the bankruptcy trustee. In particular, the Court of Cassation stressed that the subjective element of the crime of documentary fraudulent bankruptcy is constituted by the awareness and intent not to keep accounting records, making the reconstruction of assets impossible.

The Court reiterated that irregular management of accounting records constitutes a criminally relevant behavior.

Grounds for appeal and the Court's responses

A.A. appealed on four main grounds, all rejected by the Court. Among the challenges, the defendant argued for the inadmissibility of witness statements, the lack of certain proof of his role as de facto director, and requested general attenuating circumstances. However, the Court of Cassation deemed these grounds unfounded, highlighting the admissibility of the evidence collected and the coherence of the reasoning in the appealed ruling.

• The testimony of C.C. was considered valid despite objections regarding her status as a witness.
• Documentary evidence confirmed A.A.'s responsibility in company management.
• The request for general attenuating circumstances was rejected, as there were no positive elements.

Legal implications and conclusions

The analyzed ruling offers an important reflection on the liability of directors in cases of fraudulent bankruptcy. It emphasizes that a de facto director, like A.A., can incur criminal liability even in the absence of formal recognition of their role. The legal consequences are significant, as non-compliance with accounting regulations and irregular management of records can lead to severe penalties. In conclusion, the Court of Cassation confirmed the need for strict adherence to legal provisions on bankruptcy, reiterating the principle that every director must ensure the transparency and accuracy of accounting records.