Repaired Bankruptcy: Conviction Annulled – Cassation 26115/2024

Cassation no. 26115/2024: "repaired bankruptcy" and the limits of administrators' liability

THE CASE The Supreme Court (Fifth Criminal Section, judgment no. 26115/2024) intervened in proceedings for fraudulent bankruptcy concerning assets and documents against two administrators of a company declared bankrupt in 2017. The lower courts had initially upheld the conviction, excluding the hypothesis of repaired bankruptcy because the return of assets to the company had been imposed by a civil order and not carried out spontaneously by the defendants.

THE ACCEPTANCE OF THE DEFENSE ARGUMENT The Court of Cassation annulled the contested judgment, fully accepting the argument put forward by the defense team (composed of Lawyers Donatella Conicella and Roberto A. Catanzariti of Legal Aid). The defense demonstrated that the decisive criterion does not lie in the voluntariness of the restitutionary act, but rather in the effective and timely reintegration of the company's assets, the only necessary condition to eliminate the danger to the body of creditors.

The Supreme Court adopted this approach, specifying that repaired bankruptcy operates whenever the company's asset integrity is restored before the declaration of bankruptcy. It matters little whether the return is the result of a voluntary choice or a judicial compulsion: for the purposes of the crime, what matters is the concrete neutralization of the risk for creditors.

THE PRINCIPLES AFFIRMED BY THE COURT The judgment establishes four cardinal points for jurisprudence on the matter:

1. Repaired bankruptcy: the voluntary or coercive nature of the reintegration is irrelevant. The focus is solely on the objective effectiveness and timeliness of the act.
2. Subjective element: for the configuration of intent, a profit motive is not required, but awareness that the operation endangers creditors' guarantees is sufficient.
3. Administrators without delegation: their criminal liability does not automatically arise. It is essential to prove specific knowledge of the illicit act or omitted supervision in the presence of clear and objective warning signs.
4. Motivational correctness: convictions cannot be based on presumptions or automatisms, but require a rigorous ascertainment of factual and concrete circumstances.

CONCLUSIONS: THE TRIUMPH OF OFFENSIVENESS With this important ruling, the Court of Cassation consolidates a garantista and substantive approach to criminal bankruptcy law. Punishability for fraudulent bankruptcy requires a concrete danger to creditors; a danger that logically ceases if the assets have been effectively reintegrated before the opening of insolvency proceedings. The decision fully incorporates Legal Aid's defense line, overcoming rigid formalistic interpretations in favor of the centrality of the principle of offensiveness.