Bankruptcy law, a traditional area of corporate criminal liability, comprises criminal offences contained in Title VI of Royal Decree no. 267 of 16 March 1942 (i.e., bankruptcy law). It therefore addresses cases of corporate crisis (in general, following a company’s declaration of bankruptcy) and is aimed at sanctioning particularly alarming actions or practices, which have made the correct distribution of assets among corporate creditors onerous or even impossible.
Bankruptcy legislation has recently been subjected to a complete overhaul through legislative decree no. 14 of 12 January 2019, which introduced the code of corporate crisis and insolvency, aimed at replacing bankruptcy law, including criminal provisions contained therein. Following the definitive entry into force of this new textual amendment, scheduled for 1 September 2021, bankruptcy crimes will feature in title XI of this legislative decree (art.322-347), while ensuring legislative continuity with criminal offences set out by bankruptcy law.
Bankruptcy crimes of greater importance are those aimed at protecting the assets of the entrepreneur or company as a guarantee for claims on credit from third parties. It is worth stressing that, traditionally, offending conducts have relevance, in the eyes of bankruptcy criminal law, only after a company is declared insolvent. Therefore, even offending conducts that go back in time may also be of interest to bankruptcy criminal law, if they have in some way contributed to company bankruptcy or caused an entrepreneur to go bankrupt.
The relationship between the offending conduct being scrutinized and bankruptcy is precisely one of the most delicate aspects of bankruptcy criminal law: while some believe that entrepreneurs should be criminally punished only where they have maliciously caused bankruptcy, others believe that fraudulent business conduct provides sufficient grounds for it, even if bankruptcy is not in any way deemed a consequence of such conduct or, indeed, even if bankruptcy occurs many years later.
In this context, the most significant bankruptcy offences are:
Baccaredda Boy Law Firm has provided its legal assistance in high-profile criminal trials in which bankruptcy crimes were prosecuted, such as the Banco Ambrosiano affair, the so-called “Parmalat crack” and the bankruptcy trial over the Tecnosistemi Group. It also offered legal protection to banking executives in relation to liability cases of corporate collapse of provisionally administered companies.
Due to the sensitivity and complexity of these cases, Baccaredda Boy Law Firm relies on established civil and commercial law consultants in a bid to provide thorough assistance, which is central to tackling complex issues.
Last but not least, Baccaredda Boy Law Firm offers an in-depth analysis of bankruptcy offences through conferences, study groups and publications. In this respect, please refer to the relevant section.