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The crime of “bancarotta fraudolenta” may be committed also if the bankrupt entrepreneur is not the owner of concealed assets

  • 31/10/2016

The crime of “bancarotta fraudolenta patrimoniale” is set out in article 216 of the Italian Insolvency Act. It punishes with imprisonment from three to ten years the bankrupt entrepreneur who has wholly or partly concealed their assets to avoid having to forfeit them.

Jurisprudence had already stated that goods whose possession is temporary, such as in the case of a lease or bailment agreement, are not to be considered as assets belonging to the bankrupt entrepreneur (Court of Cassation, 27th February 2015, no. 13556).

With judgment n. 44350 of 20th October 2016, the Court of Cassation has explained that, as regards the commission of such a crime by the entrepreneur then declared bankrupt, it is sufficient to ascertain that the entrepreneur possesses such assets, irrespective of the existence of a valid contract as a requisite for their possession.

The Court has concluded that, in the case under its scrutiny, also the failed delivery of rented goods to the receiver determines the commission of such a crime, if the concealed assets are possessed by the entrepreneur, independently of the kind of agreement and of its validity.

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