Comment on Judgment Cass. Pen., Sec. V, no. 40100 of 2018: Fraudulent Bankruptcy and Directors' Liability

Judgment no. 40100 of 2018 by the Court of Cassation offers an important reflection on criminal liability in cases of fraudulent bankruptcy. The case analyzed concerns Z.A., accused of causing the bankruptcy of his company through fraudulent transactions and the destruction of accounting documentation. The Court's decision highlights some key points that deserve further in-depth analysis, both for legal professionals and for entrepreneurs.

The context of the judgment

The case originates from the ruling of the Court of Appeal of Milan, which had confirmed Z.A.'s conviction for documentary fraudulent bankruptcy and tax violations. The Court of Appeal had considered the evidence of the defendant's fraudulent conduct sufficient, particularly the systematic omission in the payment of taxes and social security contributions, which had generated a debt of over 1,800,000 euros.

The Court clarified that criminal liability for bankruptcy is not limited to the mere material causation of bankruptcy, but also requires the defendant's awareness of the fraudulent nature of their actions.

Elements of liability and awareness

A crucial aspect that emerged from the judgment is the need to demonstrate the defendant's awareness of the fraudulent nature of their transactions. As established by the Court, for the crime of fraudulent bankruptcy to be constituted, it is essential that the perpetrator is aware of and intends the fraudulent nature of the transaction, foreseeing bankruptcy as a consequence of their conduct. In this context, the Court reiterated that a liquidity crisis, while representing a force majeure event, does not exclude criminal liability if there has been a fraudulent action.

• The crime of fraudulent bankruptcy is constituted by fraudulent and omissive transactions.
• Awareness of the possibility of bankruptcy is a key element for criminal liability.
• The non-payment of taxes and contributions is considered a fraudulent transaction if systematic.

Conclusions

In conclusion, judgment no. 40100 of 2018 represents an important precedent for jurisprudence on fraudulent bankruptcy. It highlights how the criminal liability of directors cannot be excluded by circumstances of force majeure, but must be assessed in light of the awareness and intent of the actions taken. The clarity with which the Court has outlined the boundaries of criminal liability in bankruptcy matters offers food for thought for both legal professionals and entrepreneurs, emphasizing the importance of careful and transparent business management.