24 Oct documentary bankruptcy

The crime of fraudulent documentary bankruptcy represents one of the most relevant cases in the field of economic criminal law, since it directly affects the transparency of entrepreneurial management, the reliability of company accounting and the protection of creditor reasons in the context of judicial liquidation. The correct reconstruction of the economic and patrimonial events of the company constitutes, indeed, an essential prerequisite to allow the procedural bodies to identify the causes of the crisis, verify the destination of company resources, ascertain the existence of any distracting operations and determine the actual size of the assets intended for the satisfaction of creditors. In this perspective, accounting cannot be considered a mere administrative or fiscal fulfillment, but it represents a fundamental tool for understanding management, whose alteration can concretely compromise the possibility of reconstructing the economic history of the company. The regulation of fraudulent documentary bankruptcy is currently contained in the article 322, first paragraph, letter b), of the legislative decree 12 January 2019, n. 14, containing the Code of business crisis and insolvency, without prejudice to the application of the previous provisions of the article 216, first paragraph, n. 2, of the royal decree 16 March 1942, n. 267, to the facts subject ratione temporis to bankruptcy law. The temporal distinction is not merely formal, since identifying the applicable provision requires considering the regulations in force at the time of the crime and the rules that govern the succession of criminal laws over time. The article 322 contemplates two different methods of carrying out fraudulent documentary bankruptcy: on one side, the subtraction, destruction or falsification, total or partial, of books and other accounting records, conduct that must be supported by the aim of obtaining an unfair profit for oneself or others or of causing harm to creditors; on the other, the keeping of accounting records in such a way as to make it impossible to reconstruct the assets or the movement of business. Although both hypotheses are attributable to the same incriminating case, they present significant differences in terms of conduct and the subjective element, differences that take on decisive importance in ascertaining criminal responsibility. The first hypothesis, commonly referred to as specific document bankruptcy, includes behaviors through which the agent takes away from the availability of the procedural bodies, destroys or alters accounting documentation, pursuing one of the purposes expressly indicated by law. The subtraction can materialize in the material unavailability of the writings, while destruction consists in their elimination, total or partial, and falsification in the alteration of their truthfulness, also through the creation of accounting documents that do not correspond to the operations actually carried out. It is not necessary that the manipulation concerns the entire company accounting, even the alteration of individual writings can take on criminal relevance, provided that the additional elements required by the incriminating provision are present. The second hypothesis, traditionally referred to as general documentary bankruptcy, instead it concerns such irregular accounting management, unreliable or incomplete as to prevent the reconstruction of the company's assets or the movement of its business. In this case, the negative value of the conduct does not necessarily lie in the material elimination of documents, but in the way in which the scriptures were kept, to the point of making them unsuitable to fulfill their informative function. They can take on importance, in the presence of further legal requirements, the systematically incomplete annotation of operations, the recording of unanswered data, the failure to identify significant management components and the preparation of accounting that is structurally incapable of allowing a reliable reconstruction of the equity and financial events. The distinction between the two cases cannot, however, be resolved through an exclusively formal evaluation of the writings, the judge having to examine the concrete nature of the irregularities, their impact on the reconstructibility of the management and the methods through which the conduct was carried out. That's one thing, indeed, the existence of limited accounting inaccuracies or formal violations that do not substantially compromise the knowledge of the transactions; another is an accounting that, for structure and content, is unsuitable for documenting the real financial situation of the company. Precisely this difference allows us to avoid that every administrative irregularity is automatically transformed into a criminal offense of a fraudulent nature. The legal asset protected by the provision must be identified, in substantial terms, in the interest of the conservation and availability of reliable information, necessary to reconstruct the economic situation of the company and verify the operations that may have affected the creditors' financial guarantee. Accounting does, in this respect, a function that does not end in the interest of the entrepreneur or the financial administration, but extends to the protection of third parties who have relationships with the company e, mostly, of the creditors involved in the insolvency proceedings. The accounting documentation allows, indeed, to identify financial flows, verify relationships with customers and suppliers, reconstruct banking transactions, ascertain the consistency of inventories and identify any transfers of goods or resources not justified by actual company needs. Its alteration can therefore hinder the identification of prejudicial transactions and make it more difficult to ascertain responsibilities related to the crisis. From an objective point of view, the case requires that the conduct has the characteristics described by the law and that, in the event of a fraudulent estate, the records are managed in such a way as not to allow the reconstruction of the assets or the movement of business. Legitimacy jurisprudence has clarified that this impossibility must not be understood in exclusively absolute or material terms, also being able to detect a situation in which the reconstruction is seriously hindered by the methods of keeping the accounts. The circumstance that the procedural bodies succeed, through bank checks, documents acquired from third parties or other information sources, to subsequently reconstruct some operations does not necessarily exclude the possibility of the crime being committed. What needs to be checked is whether the accounting, considered in its concrete consistency, has lost the ability to reliably represent management and whether this result is attributable to criminally relevant conduct. The possibility of recovering information through further investigations is not equivalent, therefore, to demonstrate that the records were regularly kept. At the same time, the assessment must avoid automation: not every difficulty encountered by the liquidator or court-appointed liquidator demonstrates this, in itself, the existence of a fraudulent documentary bankruptcy, specific irregularities must be identified, their relevance and the contribution actually made by the accused's conduct to the compromise of the information function of accounting. It takes on particular importance, in this context, the subjective element of the crime. The two methods of documentary bankruptcy are distinguished, indeed, also due to the different configuration of the fraud. In this specific case, the subtraction, the destruction or falsification of records must be accompanied by the aim of obtaining an unfair profit for oneself or others or of causing prejudice to creditors. It deals with, therefore, of a specific fraud, characterized by the need to ascertain a further purpose with respect to the consciousness and will of the material conduct. It is not sufficient to demonstrate that the administrator knowingly stole or altered the documentation: it is necessary to verify that he acted pursuing one of the purposes indicated by the provision. In generic documentary bankruptcy, instead, general intent is required, which must involve the conduct of irregular keeping of records and the awareness of its suitability to prevent the reconstruction of the assets or the movement of business. The distinction was reiterated by the Court of Cassation, Moreover, with sentence no. 15987 of the 2025, which underlined the impossibility of superimposing the two cases, applying the subjective criteria of fraudulent ownership to the conduct of stealing records, vice versa, regardless of specific intent when it is required by law. The principle has immediate implications in terms of judicial assessment: the legal qualification of the conduct must correspond to the facts concretely contested and proven, without the greater gravity of the business context being able to make up for the lack of a constitutive element of the crime. Proof of intent constitutes, after all, one of the most delicate aspects in documentary bankruptcy proceedings. The existence of incomplete accounting, disordered or unreliable represents objective data that can take on importance in the reconstruction of the story, but it doesn't allow, considered in isolation, to assert the criminal liability of the administrator. It is necessary to proceed with an overall assessment of the circumstances of the specific case, considering the nature of the irregularities, their temporal extension, the relevance of undocumented operations, the economic-financial situation of the company, the role actually played by the accused and the possible existence of elements that reveal a conscious desire to compromise the accounting reconstruction. The Court of Cassation, with sentence no. 10751 of the 2025, recalled the need for an independent and adequately motivated assessment of the specific intent in the documentary case characterized by the theft of records, excluding that this element can be automatically deduced from the failure to deliver the documentation to the trustee. The principle is particularly significant because it prevents transforming behavior that is certainly relevant on an investigative level into an absolute presumption of fraudulent intent.. Failure to deliver may be a clue, but it must be evaluated together with the other available elements, taking into account the reasons for the unavailability of the records and the concrete circumstances in which it occurred. Likewise, in the generic case, the seriousness of the accounting anomalies does not exempt the judge from the obligation to explain why they are the expression of conscious and voluntary conduct, rather than the result of grossly negligent management or inadequate administrative organisation. The difference between fraudulent bankruptcy and simple documentary bankruptcy assumes, therefore, an essential guarantee function. The article 330 of the Corporate Crisis and Insolvency Code, in coordination with the provisions of the same code, regulates simple bankruptcy, while, for facts subject to previous legislation, the reference is to the article 217 of bankruptcy law. Simple documentary bankruptcy may come into consideration when the accounting irregularities are attributable to conduct lacking the subjective elements necessary for the configuration of the fraudulent case, provided that the conditions of the specific applicable provision are integrated. This is not an automatic degradation of the fact whenever evidence of fraudulent intent is lacking, since all the objective and subjective elements of the less serious crime must still be ascertained. However, the failure to ascertain the intent required by the fraudulent case prevents the conviction from being based solely on the finding of the accounting disorder. In this direction lies a jurisprudential orientation that enhances the need to distinguish administrative irregularity, negligence in the conservation of writings and conduct consciously aimed at compromising their reconstructive function. The evaluation cannot be entrusted to generic formulas, but it must develop through coherent evidentiary reasoning, capable of connecting objective data to conclusions relating to the psychological attitude of the agent. A further profile of interest concerns the identification of criminally responsible subjects. In commercial companies, the assessment must take into account the position of the administrator, of the powers actually exercised, of the delegated powers and the concrete contribution provided to accounting management. Formal ownership of the office is a relevant element, but it cannot replace the assessment of individual conduct and the subjective element. On the other hand, the entrusting of the material keeping of the records to an accountant, to an external consultant or administrative staff does not determine, in itself, the exemption of the director from the obligations incumbent upon him, nor does it prevent the ascertainment of responsibility when awareness of the irregularities and participation in criminally relevant conduct are proven. It is necessary to distinguish, in particular, the mere delegation of operational activities from actual extraneousness to fraudulent management of documentation. Responsibility cannot be asserted solely on the basis of the role held, but not excluded simply because the recordings were physically made by third parties. The verification must concern the concrete behavior of the accused, the availability of information, the powers exercised and the elements from which his awareness of the accounting management methods can be deduced. The same caution must be adopted towards the de facto director, whose responsibility can be recognized when the effective and significant exercise of the powers typical of corporate management and its contribution to the realization of the fact is demonstrated, without the mere informal influence on the company being sufficient to found the accusation. Documentary bankruptcy also takes on particular importance in the context of companies that use IT systems for recording and storing accounting data. The progressive digitalisation of company management does not reduce the obligations of correct keeping and conservation of documentation, but it changes the operating methods. The loss of electronic archives, failure to conserve the media, the absence of documents necessary to interpret the recorded data or the unavailability of the information essential for the reconstruction of the operations can take on criminal relevance when the specific conditions of the case are met. Even in this area, however, it is essential to distinguish the technical fault, organizational error and negligent non-compliance through malicious conduct. The mere accidental loss of data is not the same as fraudulent destruction, just as an inadequate IT system does not demonstrate, without further elements, the desire to prevent the reconstruction of the heritage. It therefore becomes crucial to ascertain whether the unavailability of the information is attributable to a conscious choice, whether adequate conservation measures have been taken, whether security copies exist and what the concrete impact of the conduct was on the possibility of reconstructing company management. On a procedural level, the results of the insolvency proceedings and the reports of the bodies in charge of the liquidation can offer important elements for identifying accounting anomalies, but they do not replace proof of the constituent elements of the crime. The documentation acquired, the statements made, the results of bank investigations and any technical consultancy must be evaluated according to the rules of criminal proceedings, verifying their reliability and demonstrative capacity with respect to the specific disputed conduct. The declarations made by the entrepreneur to the trustee also require a correct legal evaluation: the ruling of the Supreme Court n. 10751 of the 2025 addressed the issue of their usability, excluding automatisms based solely on the invocation of the right not to contribute to one's own incrimination, without prejudice to the need to verify the concrete circumstances and the applicable procedural rules. It follows that the assessment of documentary bankruptcy cannot be reduced either to the observation of the deficiencies detected in the accounting or to the existence of the subsequent judicial liquidation. The conduct must be identified, reconstruct its development, distinguish the different methods provided for by the law and demonstrate the subjective element required for each of them. As for the sanctioning treatment, the article 322 of the Business Crisis and Insolvency Code provides, for the case of fraudulent bankruptcy, imprisonment from three to ten years, in addition to the additional penalties provided for by law, whose application must be determined according to the regulations in force and the principles that regulate the matter. The seriousness of the criminal consequences confirms the need for rigorous assessment, respectful of the principle of personal responsibility enshrined in the article 27 of the Constitution and the presumption of innocence provided for by the article 27, second paragraph, the Constitution. The protection of creditors and the need to guarantee the transparency of insolvency procedures are fundamental interests, but they cannot justify interpretations that extend criminal responsibility beyond the limits established by the incriminating law. Fraudulent documentary bankruptcy must therefore be interpreted as a case aimed at repressing conduct that is actually fraudulent or knowingly capable of compromising the reconstructive function of accounting, not as a tool to sanction any irregular administrative management without distinction. In conclusion, the central point of the assessment consists in keeping separate the objective data of accounting incompleteness or unreliability and the proof of individual criminal responsibility. Accounting is an indispensable tool for reconstructing the events of the company and for protecting credit claims, but its irregularity cannot be assumed as an automatic synonym of fraud. The correct application of the discipline requires a concrete examination of the scriptures, of company operations, of the role of the subjects involved and the purposes or awareness that accompanied the conduct. Only through this evaluation is it possible to ensure a balance between the effectiveness of criminal protection of the economy and respect for the principles of legality, culpability and proportionality, avoiding that the difficulties inherent in insolvency procedures translate into an undue extension of the directors' liability.