Fraudulent bankruptcy: commentary on the judgment of the Court of Appeal of Taranto no. 488 of 2024

The recent judgment no. 488 of 2024 by the Court of Appeal of Taranto offers important food for thought regarding the liability of directors in companies in a state of insolvency. In particular, the case of V.R., accused of fraudulent documentary bankruptcy, highlights the responsibilities not only of those who materially manage the company, but also of those who formally hold management positions.

The context of the judgment

The case examined by the Court concerns V.R., who held the position of director of R.R.M.F. s.r.l., a company subsequently declared bankrupt. The first-instance judge had established his liability for concealing or destroying accounting records, essential for reconstructing the company's economic situation and for respecting creditors' rights. The Court confirmed this decision, holding that the absence of accounting documentation constitutes fraudulent conduct aimed at prejudicing creditors.

The Court ruled that the de jure director is liable even if they do not directly manage the company, provided they are aware of the management by others.

Liability of de jure and de facto directors

The judgment clarifies a fundamental principle: even a de jure director, who does not actively participate in the company's day-to-day management, can be held liable for the crime of bankruptcy if they do not exercise adequate controls. Case law, as reported in the judgment, establishes that criminal liability cannot be excluded simply by the lack of direct management.

Among the grounds for appeal presented by the defence, the alleged inactivity of the company and the predominant role of the de facto director, V.M., were highlighted. However, the Court noted that V.R. had never truly distanced himself from the management, continuing to hold a formal position that entailed specific responsibilities.

Legal implications and consequences of the judgment

The decision of the Court of Appeal of Taranto highlights the importance of correct corporate management and the duty of oversight by directors. Criminal liability for fraudulent bankruptcy is not limited to those who operate materially, but extends to all those who, by virtue of their formal position, have the obligation to ensure the correct keeping of documentation. The implications of this judgment are clear:

• Directors must be aware of their responsibilities and duties of oversight.
• The mere position of director does not exempt from criminal liability.
• Any family or trust relationships cannot justify a lack of control.

Conclusions

Judgment no. 488 of 2024 by the Court of Appeal of Taranto represents an important precedent in Italian case law on fraudulent bankruptcy. It emphasizes how the criminal liability of directors extends beyond the mere formal position, requiring effective action and oversight of corporate management. In a complex economic context, it is essential that those in positions of responsibility fully understand their legal duties, in order to avoid serious financial and criminal consequences.