Fraudulent and documentary bankruptcy: commentary on judgment Cass. pen. no. 45044/2022

The recent judgment of the Supreme Court of Cassation, no. 45044 of November 25, 2022, offers significant insights into the crimes of fraudulent and documentary bankruptcy. This decision not only analyzes the liability of directors of bankrupt companies but also clarifies the importance of proper maintenance of accounting documentation. In this article, we will delve into the highlights of the judgment and their impact on Italian jurisprudence.

The facts of the case and the initial convictions

In the judgment under review, A.A., director of a company that went bankrupt in 2013, had been convicted of fraudulent patrimonial and documentary bankruptcy. The Court of Appeal of Florence had confirmed the conviction, but A.A. appealed the decision, arguing that there was no valid evidence for his liability, neither regarding the misappropriation of assets nor the failure to keep accounting records.

Controversial points and flaws in reasoning

A.A.'s grounds for appeal focused on two main aspects: proof of the availability of the transferred assets and the preservation of accounting documentation. In particular, the first ground highlighted how the Court had not clarified whether the assets in question had actually been misappropriated or if their sale had been simulated. The Cassation Court emphasized that assets subject to bankruptcy cannot include those held under a precarious title, as in the case of a loan for use.

The notion of assets belonging to the bankrupt includes only those things that have entered the latter's estate.

Regarding accounting documentation, the Cassation Court confirmed that the director is responsible for the proper keeping and preservation of accounting books, even if archived in digital format. The Court reiterated that the preservation of accounting data must be such as to guarantee its accessibility at all times, and any malfunction of the equipment does not exempt the director from his obligations.

Implications of the judgment

This judgment represents an important legal precedent, as it clarifies that the director's liability is not limited to the mere preservation of documents but also extends to the prevention of potential malfunctions. The Cassation Court annulled the conviction for fraudulent patrimonial bankruptcy but confirmed that for simple documentary bankruptcy, highlighting the need for careful management of accounting records.

• The director's liability is extended to all aspects of accounting management.
• It is essential to demonstrate the origin and regularity of assets in case of bankruptcy.
• Proper keeping of accounting books is essential to avoid penalties.

Conclusions

In conclusion, judgment Cass. pen. no. 45044/2022 offers an important reflection on the liability of directors of companies in bankruptcy. It emphasizes how vigilance and proper management of accounting documentation are crucial elements to avoid serious criminal consequences. Directors must be aware of their duties and the legal implications of their actions, to protect not only their own position but also the interests of the company and creditors.