Fraudulent bankruptcy with Italy - International Lawyers Associates
 

Fraudulent bankruptcy

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Fraudulent bankruptcy This crime is one of the most serious bankruptcy crimes.
It materializes when an entrepreneur:

  • diverts, disguises, masks, eliminates or disperses all or part of its assets, thus causing damage to creditors (in this case we are talking about fraudulent bankruptcy due to distraction, which we will talk about better below);
  • steal, destroy or falsify, in whole or in part, their assets in such a way as to cause an illegitimate benefit to themselves or to third parties;
  • to harm creditors, it presents non-existent liabilities (in this case we speak of fraudulent patrimonial bankruptcy);
  • In order to harm creditors, it hides books or other accounting records or keeps them in such a way that it does not allow the reconstruction of the patrimony or the movement of the business (in this case we are talking about fraudulent documentary bankruptcy, which we will talk about better below) ;
  • to favor some creditors over others, it makes payments or simulates rights of first refusal (in this case we are talking about preferential fraudulent bankruptcy, which we will discuss better below).

If you, a family member or acquaintance is being held for a crime, we can help you.

Fraudulent bankruptcy terms

In order for the terms of this crime to be integrated, the contribution of some subjective and objective factors is necessary. In the first place, the subject must be a commercial entrepreneur or a company or one of the subjects that represents it in the case of a tax offense that is a bankruptcy offense.

Bankruptcy is a crime that, therefore, presupposes specific qualities of the subject. This does not mean that an outside party cannot participate in the crime.

As we will see better in the course of our discussion, the participation of the extraneus in the crime of fraudulent bankruptcy is also considered a crime by law (art. 216 - 217 and 223 of the bankruptcy law).

Bankruptcy crime is one of the main bankruptcy crimes punishable only if the employer declares bankruptcy. From an objective point of view, therefore, it is the bankruptcy declaration that represents an important constituent element of this crime.

Fraudulent bankruptcies: discipline and rates

The discipline that regulates this crime is very complex and articulated and includes:

  • the Bankruptcy Law (Royal Decree No. 267 of 03.16. 1942), modified by Legislative Decree No. 59 of 3.05.2016, converted and modified by Law no. 119 of 06.30.2016 in force since 07.03.2016;
  • Articles 216 and 217 of the bankruptcy law that respectively regulate the crime of fraudulent bankruptcy and simple bankruptcy;
  • Art. 223 of the bankruptcy law (to be interpreted together with articles 216 and 217 that regulate participation in bankruptcy crimes).

In addition to simple bankruptcy, there are other types of quo crimes:

Fraudulent bankruptcy by distraction

The crime in question occurs when the employer (or the administrator of the company) steals, hides, distracts or destroys assets and financial resources from their own or collective assets to enrich themselves, depriving creditors of any form of equity guarantee on which can satisfy (Criminal Cassation, Section V, n.18981 of 6.05.2016).

Fraudulent Preferential Bankruptcy

In this case the subject - be it physical or legal - declared bankrupt pays only some of the creditors to the detriment of the others. It follows that the principle of pars condio creditorum is violated (Criminal Cassation, Section V, no. 35365 of 08/23/2016).

Fraudulent documentary bankruptcy

When a person decides to carry out a commercial activity, he is obliged to compile, keep and keep certain accounting books. The latter, therefore, is responsible for the crime of fraudulent documentary bankruptcy when it is going to destroy or steal the accounting books in order to obtain an unfair benefit, harming its creditors (Criminal Cassation, Section V, n.24059 of 9.06 .2016).

Competition in the crime of bankruptcy

To understand specifically what participation in the crime of fraudulent bankruptcy consists of, it is enough to faithfully inform what was declared by the recent Criminal Cassation no. 8349 of 01/03/2016: «The participation in the crime of fraudulent bankruptcy of a person outside the contest is configurable if the conduct carried out in conjunction with the contestant was efficient for the production of the event and the third competitor operated with the conscience and the will to help the businessman in distress to frustrate the obligations established by law to protect the company's creditors (Cassation, Section V, nº 27367 of 04/26/2011).

In conclusion, it is good to identify the precise terms in which the crime can be considered integrated. The latter, for example, should be considered different from the abusive recourse to credit, which is another criminal hypothesis that the bankruptcy law provides and that, rather, it can be said that it is committed when an entrepreneur persists in recourse to credit, hiding his bankruptcy. .

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Before an arrest, the highest priority is to receive specialized legal assistance as soon as possible and to maintain contact with the outside.

 If you or a loved one has been arrested, we can help you.

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