01 Feb bankruptcy

The three different hypotheses of the fraudulent bankruptcy crime are currently governed by a single provision: art. 216 of bankruptcy law. He commits this crime the failed entrepreneur who, before the intervention of the bankruptcy sentence, has distracted, hidden, unfortunate, destroyed or dissipated in whole or in part its assets, or – In order to prejudice creditors – has exposed or recognized non -existent liabilities (c.d. financial bankruptcy). Bankruptcy is configured even if the aforementioned conduct are committed after the sentence and during the bankruptcy procedure (c.d. Post-Falling bankruptcy). It also commits the crime of fraudulent bankruptcy the entrepreneur declared bankrupt who subtracts, It destroys or falsifies books and accounting records in order to procure for or others an unfair profit or to make damage to creditors (c.d. documentary bankruptcy), That is, it performs payments or simulates pre -emption titles to encourage some of the creditors (c.d. preferential bankruptcy). It is a proper crime, which can only be committed by the commercial entrepreneur, to which the occult entrepreneur and the one who carries out the commercial activity for the pursuit of an illegal purpose are equated. With the bankrupt, a third can also compete in the crime, If his activity has been included in the criminal process with causal effectiveness on the event. The subjective element, according to some, consists in the will of the agent to profit, for themselves or for others, of the facts committed with prejudice to creditors (specific malice). Other authors instead believe that generic willful misconduct is sufficient, that is, the only will to perform the various acts regardless of the purpose. The penalty is imprisonment from 3 a 10 years in case of property bankruptcy and documentary; imprisonment from 1 a 5 years in case of preferential bankruptcy. Furthermore, The specific conviction for fraudulent bankruptcy involves for 10 years the incapacitation to the exercise of a commercial company e, always for 10 years, the inability to exercise executive offices at any company. Pursuant to art. 217 of bankruptcy law, He commits the crime of simple bankruptcy the entrepreneur, declared failed, making personal expenses (or for the family) excessive compared to its economic condition, which consumes part of its assets in imprudent operations, which performs serious acts to delay bankruptcy, that aggravates one's instability, omitting the bankruptcy request (c.d. financial bankruptcy) e, in the end, who does not meet the obligations assumed in a previous composition with creditors or bankruptcy. The entrepreneur is committed to the same crime, then declared failed, that in 3 years prior to the bankruptcy declaration did not hold books and other accounting records prescribed by law, or he kept them incompletely (c.d. documentary bankruptcy). Even in these cases they are their own crimes, which can be committed only by the commercial entrepreneur, while the subjective element can be even the fault, therefore considering himself sufficient for the purposes of the punishment that the bankrupt has acted with imprudence, inexperience or negligence. Dolo is required only in relation to the non -fulfillment of the obligations assumed in a previous arrangement. The penalty is set in the imprisonment from 6 mesi a 2 years, which is added the incapacitation to the exercise of a commercial company and the inability to exercise directive offices at any company for Massimo 2 years. Exemptions from the crimes of bankruptcy the art. 217-bis of the bankruptcy law excludes that payments and operations carried out in execution of a composition with creditors, of an approved debt renovation agreement, of a plan or of an agreement for the composition of the approved crisis (v. Law 3/2012 – Composition of over -indebtedness crises, as well as payments and financing transactions authorized by the judge do not apply preferential bankruptcy or simple bankruptcy. Improper fraudulent bankruptcy (Facts of fraudulent bankruptcy) To punish the crime of bankruptcy (fraudulent or simple) The declaration of bankruptcy is required and therefore the person who commits the crime must be entrepreneur subject to bankruptcy. Pursuant to art. 223 of bankruptcy law, The penalties established by art. 216 (imprisonment from 3 a 10 years for property bankruptcy and documentary; imprisonment from 1 a 5 years for preferential bankruptcy; accessory penalty of the inhabitation to the exercise of a commercial company and the inability to exercise directive offices at any company for 10 years) they also apply to administrators, To the General Directors, to the mayors and liquidators of companies declared bankruptcy, I know: they committed some of the facts indicated by art. 216; they caused or competition to cause, the instability of the company, committing some of the facts provided for by the civil code (articles 2621, 2622, 2626, 2627, 2628, 2629, 2632, 2633 e 2634) as corporate crimes (false social communications, undue return of the contributions, illegal distribution of profits or reserves, Operations in prejudice of creditors, financial infidelity, etc…); they caused – with willful misconduct or for the effect of malicious operations – the failure of the company, even simply by aggravating an existing situation of instability. Furthermore, pursuant to Article. 217 of bankruptcy law, The penalties foreseen for the crime of fraudulent bankruptcy can also be imposed on the Instormer of the entrepreneur declared bankrupt who committed the facts referred to in art. 116 of the same law. Simple improper bankruptcy (Simple bankruptcy.) Pursuant to art. 224 of bankruptcy law, The penalties established in art. 217 For the crime of simple bankruptcy (imprisonment from 6 mesi a 2 years and incapacitation to the exercise of a commercial enterprise with inability to exercise executive offices at any company for Massimo 2 years) they also apply to administrators, To the General Directors, to the mayors and liquidators of companies declared bankruptcy, who have: made personal expenses or for the family excessive compared to his economic condition; consummated a remarkable part of the assets in pure or manifestly imprudent operations; carried out operations of serious imprudence to delay bankruptcy; aggravated the instability, refraining from requesting the declaration of bankruptcy or with other serious fault; failure to meet the obligations taken in a previous composition with creditors or bankruptcy; held books and accounting records irregularly in the three years preceding the bankruptcy; competition to cause and aggravate the instability with non -compliance with the obligations imposed on them by law. Demand for admission of simulated credits: current legislation the article 232 of the bankruptcy law provides in the first paragraph the crime of application for admission of simulated credits. He commits this crime anyone, Outside the cases of bankruptcy competition, also for interposed person, submit an application for admission to the liability of the bankruptcy for a fraudulently simulated credit. It is a common crime (whoever) whose conduct does not end in the presentation of the application for admission to the liability, But it also includes fraudulent simulation, which must accompany or precede the application for insinuation. The case falls within the category of danger crimes e, more precisely, of presumed danger: For the existence of the crime, therefore, the conduct must not cause effective damage to the failure and expectations of the creditors admitted to the competition, But it is sufficient that the danger of this damage is presumptively derives from the presentation of the fraudulently simulated credit, without detecting its admission or not to the passive. The subjective element is identified in generic willful misconduct. The penalty is imprisonment from 1 a 5 years and the fine from 51 a 516 euro; The crime is attenuated and the penalty halved if the application is withdrawn before verification of the passive state (second paragraph). Bankruptcy receiving: current legislation The crime of bankruptcy receiving stolen goods is provided for by the third paragraph of art. 232 L.F. He commits this crime anyone: After the declaration of bankruptcy he subtracts, distracts, recipe, that is, it is dismissed assets of the bankruptcy (Outside the cases of bankruptcy or aiding and abetting competition); before the bankruptcy declaration, despite being aware of the state of instability of the entrepreneur who will lead to the bankruptcy itself, Distra or recipes or other goods of the same or buy them at a significantly lower price than the current value. Also in this case - like the application for admission of simulated credits – It is a common crime (whoever), of alleged crime of danger and generic willful misconduct is required. The penalty of imprisonment from 1 a 5 years has increased if the buyer is a commercial entrepreneur (fourth subparagraph). Aggravating and mitigating circumstances pursuant to art. 219 of bankruptcy law, fraudulent bankruptcy crimes (art. 216), simple bankruptcy (art. 217) and abusive appeal to credit (art. 218) they are aggravated if: The facts committed have caused asset damage of significant gravity; In this case the penalty has increased until half; The culprit has committed more facts among those provided for in the norm; The culprit by the law could not exercise a commercial company. The same crimes are attenuated – and reduced penalties up to the third – If the facts committed have caused asset damage of special tenuity. L’art. 221 instead provides, in general, that if the summary procedure applies to bankruptcy, The penalties provided for the crimes committed by the bankrupt are reduced up to the third. Accessories penalties currently, without prejudice to the possible application of the ancillary penalties provided for by the criminal code, The bankruptcy law provides for the following specific hypotheses: In case of fraudulent bankruptcy, incapacitation to the exercise of a commercial company and inability to exercise executive offices at any company for 10 years (Articles. 216, 223 The aggravation of the instability punished by art); In case of simple bankruptcy, incapacitation to the exercise of a commercial enterprise and inability to exercise executive offices at any company for Massimo 2 years (Articles. 217, 224 The aggravation of the instability punished by art); In case of abusive appeal to credit, incapacitation to the exercise of a commercial enterprise and inability to exercise executive offices at any company for Massimo 3 years (Articles. 218, 225 The aggravation of the instability punished by art); In the case of private interest of the curator in the deeds of bankruptcy, interdiction from public offices (art. 228 The aggravation of the instability punished by art) In the most serious cases of acceptance by the curator of unrelated salaries, Inhasing the administrator office per minimum 2 years (art. 229 The aggravation of the instability punished by art).