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    Simple Bankruptcy

    Simple bankruptcy punishes conduct marked by imprudence, negligence or gross fault in managing the business, without the fraudulent element required by the offences under Article 322 of the Crisis Code. It is governed by Article 323 and punished with imprisonment from six months to two years; ancillary penalties may be applied for up to two years under Article 326.

    Simple bankruptcy punishes conduct marked by imprudence, negligence or gross fault in managing the business, without the fraudulent element required by the offences under Article 322 of the Crisis Code. It is governed by Article 323 and punished with imprisonment from six months to two years; ancillary penalties may be applied for up to two years under Article 326.

    The distinction from fraudulent bankruptcy is not quantitative but qualitative: what matters is not the size of the damage but the nature of the conduct and the subjective element supporting it.

    The conduct set out in Article 323

    • personal or family expenses excessive in relation to one's economic condition
    • consumption of a substantial part of the assets in purely speculative or manifestly imprudent transactions
    • carrying out grossly imprudent transactions to delay judicial liquidation
    • aggravating the insolvency through gross fault, including by refraining from requesting the opening of the procedure
    • failure to comply with obligations assumed in a composition with creditors

    Imprudent transactions and business risk

    Criminally relevant imprudence does not coincide with the physiological risk of economic activity. Business activity by definition involves taking risks, and the negative outcome of a decision is not enough to establish liability. The assessment must consider the information available when the choice was made, the proportion between the transaction and the company's size, the preliminary analysis carried out and consistency with the business conducted.

    Aggravation of insolvency and gross fault

    The case under letter d) requires establishing an aggravation of insolvency causally attributable to conduct marked by gross fault. Delay in requesting the opening of the procedure is not sufficient: it must be assessed what the actual impact of the conduct was on the evolution of the economic and financial situation, distinguishing it from pre-existing or concurrent causes of insolvency.

    Simple documentary bankruptcy

    Article 323(2) punishes the entrepreneur who has not kept the prescribed books and other accounting records, or has kept them irregularly or incompletely, in the three years preceding the opening of judicial liquidation or since the start of the business if shorter.

    The difference from documentary fraudulent bankruptcy lies in the subjective element and in the effect of the conduct: the fraudulent offence requires specific intent or record-keeping that makes reconstruction of assets or business transactions concretely impossible. Irregularity and incompleteness, if they do not prevent reconstruction, remain within simple bankruptcy.

    Accounting entrusted to an accountant

    Outsourcing accounting to an external professional does not automatically transfer liability. What matters is the documentation actually transmitted, the instructions given, the controls actually enforceable in relation to the company's size and organisation, and the conduct after problems emerged.

    Simple bankruptcy in companies

    Article 330 extends the rules on simple bankruptcy to directors, general managers, statutory auditors and liquidators of companies subject to judicial liquidation. Here too liability must be assessed on the basis of the functions actually exercised, delegated powers, the period in office and the information available.

    Why the legal qualification is decisive

    Requalifying a charge from fraudulent to simple bankruptcy affects the main penalty, the duration of ancillary penalties, limitation periods and the requirements for precautionary measures. For this reason, analysing the subjective element and the actual nature of the conduct is one of the main areas of defence work.

    Defence strategy

    1. identification of the specific conduct charged among those under Article 323
    2. reconstruction of the economic context and of the information available when decisions were taken
    3. verification of the proportion between the transactions charged and the company's size
    4. analysis of the causal link in cases of aggravation of insolvency
    5. reconstruction of the state of the accounting documentation and its causes
    6. assessment of the correct qualification as against the fraudulent offences

    Frequently asked questions

    What is the difference between simple and fraudulent bankruptcy?

    Simple bankruptcy concerns imprudence, negligence or gross fault in management; fraudulent bankruptcy requires conduct of diversion, concealment, falsification or preference supported by the subjective element set out in the provision. The gravity, the penalty and the rules on ancillary penalties all differ.

    Is delay in requesting judicial liquidation punishable?

    It may be relevant in the case of aggravation of insolvency through gross fault, but requires establishing the causal link between the conduct and the aggravation, distinguishing pre-existing or concurrent causes.

    Is incomplete accounting always simple documentary bankruptcy?

    Not necessarily. It must be checked which records were prescribed, the actual incompleteness, the relevant period and the subjective element, distinguishing the offence from documentary fraudulent bankruptcy.

    Back to the general framework of fraudulent bankruptcy →

    Frequently asked questions about Bankruptcy and Business Crisis Offences

    What is fraudulent bankruptcy and when does it arise?
    Fraudulent bankruptcy is the most serious form of criminal liability in insolvency offences. It arises when an entrepreneur or director knowingly diverts corporate assets, records fictitious liabilities, or alters accounting records, prejudicing creditors' security. Establishing liability requires verification of the typical elements of the offence, the causal link, and specific criminal intent.
    What is documentary fraudulent bankruptcy?
    Documentary fraudulent bankruptcy concerns conduct that alters, removes or irregularly keeps accounting records, undermining the reconstruction of assets and business movements. Not every accounting irregularity is criminally relevant: the alteration must concretely prevent reconstruction of the company's financial position.
    What is preferential bankruptcy and what is the defence approach?
    Preferential bankruptcy concerns payments made in a state of insolvency in favour of certain creditors, in violation of the principle of par condicio creditorum. Criminal liability does not automatically arise from selective payments; it requires proof of awareness of insolvency and intent to favour specific creditors.
    How is the defence approached in simple bankruptcy proceedings?
    Simple bankruptcy concerns imprudent or irregular conduct that contributed to business distress, without fraudulent intent. The defence focuses on distinguishing normal business risk from criminally relevant conduct, and verifying that management deficiencies do not meet the objective and subjective requirements of the offence.
    What is the limitation period for bankruptcy offences?
    The limitation period for bankruptcy offences runs from the declaration of bankruptcy, which constitutes an objective condition of punishability, and not from the time of the act. The periods vary depending on the offence: fraudulent bankruptcy has a longer period given its higher maximum penalty. The defence analyses the correct identification of the dies a quo and any grounds for interruption or suspension that may affect the calculation of the period.

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