Fraudulent Bankruptcy: Analysis of Judgment Cass. pen., Section V, no. 509 of 2023

The recent judgment of the Court of Cassation, Criminal Section V, no. 509 of January 10, 2023, offers significant insights into the criminal liability of directors in cases of fraudulent bankruptcy. In the specific case, A.A. was convicted for the gratuitous transfer of a business unit during the bankruptcy of his company, highlighting the distinction between legitimate and illicit business management.

Context and Proceedings

The Court of Appeal of Bologna had initially reduced the sentence imposed on A.A. for fraudulent bankruptcy, but could not avoid confirming the defendant's criminal liability. The accusation was based on concrete evidence demonstrating the transfer of crucial company assets to (Omissis) Srl, a company attributable to him, without any consideration.

• De facto administration of the bankrupt company.
• Gratuitous transfer of company assets.
• Overlap of clientele and employees between the two companies.

The transfer of a business unit that makes the pursuit of the corporate object no longer possible constitutes the crime of fraudulent bankruptcy.

Legal Principles and Implications

The Court reiterated that fraudulent bankruptcy is constituted even in the absence of adequate consideration for the transfer of assets. This aspect is crucial for understanding the responsibilities of directors and the need for transparent and lawful business management. The decision aligns with established case law on the matter, which states that any operation that harms creditors is subject to criminal prosecution.

Furthermore, the judgment clarified that the mere position of director does not exempt from liability in cases of illicit management. A.A. had played an active role in the company's management, which made his responsibility in the misappropriation of assets evident.

Conclusions

The Cassation judgment no. 509 of 2023 underscores the importance for directors to always act in compliance with the law and the interests of creditors. The implications of this decision are significant not only for A.A. but for all economic operators, who must be aware of the criminal consequences of improper management of their companies. Transparency and correctness must be at the center of business management to avoid incurring criminal sanctions and reputational damage.