Commentary on Judgment No. 53/2023 of the Court of Appeal of Rome: Fraudulent Bankruptcy and Liquidator's Liability

Judgment No. 53 of February 15, 2023, by the Court of Appeal of Rome represents an important intervention in the area of fraudulent bankruptcy, delving into the responsibilities of a company's liquidator in crisis. The Court examined various aspects related to the company's accounting management, highlighting the differences between simple and fraudulent bankruptcy offenses.

The Liquidator's Illicit Conduct

The Court confirmed the liability of R.G., liquidator of the company L. srl, for causing financial distress through illicit conduct. Specifically, the liquidator was accused of making preferential payments to a creditor, in violation of the provisions of bankruptcy law. The offense of preferential bankruptcy was established as the payment of Euro 31,355.87 to a former employee was made to the detriment of other creditors.

Simple bankruptcy and fraudulent documentary bankruptcy are distinguished by the different nature of the subjective element.

Distinction Between Simple and Fraudulent Bankruptcy

A crucial element of the decision is the distinction between simple bankruptcy and fraudulent bankruptcy. The Court emphasized that for the configuration of fraudulent bankruptcy, it is necessary to prove the malicious intent to obstruct the reconstruction of the company's assets. In this specific case, the Court held that the liquidator's awareness of the accounting irregularities had not been proven, leading to the reclassification of the charge from fraudulent bankruptcy to simple bankruptcy.

Implications of the Judgment

The judgment also addressed the issue of the statute of limitations. The Court declared that the hypotheses of preferential and fraudulent bankruptcy were time-barred as of July 20, 2020, highlighting the importance of the timeliness of legal actions in the bankruptcy context.

• R.G. did not demonstrate awareness of the accounting irregularities.
• The statute of limitations extinguished the hypotheses of preferential and fraudulent bankruptcy.
• The distinction between specific and general intent is fundamental for the qualification of the offense.

Conclusions

In conclusion, judgment No. 53/2023 of the Court of Appeal of Rome offers a clear view of the liquidator's responsibilities in cases of bankruptcy. It underscores the importance of transparent management of accounting records and the need to avoid preferential payments that could harm creditors. This case represents an important reflection for all professionals in the sector, so that they can operate in compliance with current regulations and safeguard the interests of all creditors.