The crimes of the business crisis.
Disciplined in Title IX of the Corporate Crisis Code (entitled "Criminal Provisions") in implementation of the delegated law 19 October 2017 n.155 (Delegation to the Government for the reform of the disciplines of the corporate crisis and insolvency) and approved on 10 January 2019 from the Council of Ministers the so-called crimes of the crisis in the context of substantive regulatory continuity, they are included in the criminal offenses envisaged by the bankruptcy law.
Brief clarification: Criminal relevant facts put in place by the commercial entrepreneur or by other subjects, in a period prior to filing for bankruptcy or during the course of the insolvency procedure.
Title VI of the Royal Decree March 16, 1942 n. 267, commonly known by the name of "Bankruptcy law", discipline, in Chapter I, the crimes committed by'bankrupt entrepreneur (ex art. 216-222) while in chapter II the crimes committed by people other than the bankrupt (ex art. 223-224 and art. 227 and art. 228-231).
The new Code will come into force, after the eighteen months of its publication (art. 389 paragraph 1 CCI) on August 15, 2020 (except for some provisions which instead came into force after 30 days from the same).
This new legislation arises from the need to systematically reorganize the discipline of the RD March 16, 1942 n. 267, and that of the law n. 3/2012 (subsequently amended by Legislative Decree No. 179/2012, converted into Law No. 221/2012) containing the regulation on the composition of over-indebtedness crises.
It should be immediately pointed out that the expression "failure" disappears in the new formulation to make way for the phrase "Judicial liquidation", as well as the expression "failed" will be replaced by that of "Entrepreneur in bankruptcy".
The totally negative connotation of insolvency is therefore set aside to make room for a more comprehensive interpretation of the risk underlying the business activity.
What are the criminal news?
We immediately make it clear that the criminal cases already covered by the bankruptcy law have not been reformulated, without prejudice to the terminological substitutions mentioned above.
With a specific transitional provision (art. 389 CCI) it was then provided that the procedures pending on the date of entry into force of the legislative decree remain governed by the bankruptcy law, also with regard to criminal effects, while the criminal provisions of the Code will apply to the entrepreneur declared in judicial liquidation for the facts of crime committed in connection with bankruptcy procedures (rectius liquidation judicial) or composition of the crisis and insolvency opened following appeals, proposals or applications that have been presented after the entry into force of the Legislative Decree 14/2019 and that they were not pending on that date (art. 390 paragraph 3 CCI in relation to paragraphs 1 and 2 of the same rule).
In the context of Chapter I, relating to the crimes committed by the entrepreneur in judicial liquidation, we find:
- To the art. 322 fraudulent bankruptcy (ex 216 bankruptcy law)
- To the art. 323 simple bankruptcy (ex 217 bankruptcy law)
- To the art. 324 exemptions from bankruptcy crimes envisaged (ex 217 bis bankruptcy law)
- To the art. 325 the abusive use of credit (ex 218 bankruptcy law)
- To the art. 326 aggravating circumstances and mitigating circumstances (pursuant to art 219 lf)
- To the art. 327 the reporting of non-existent creditors and other non-compliance by the entrepreneur in judicial liquidation (ex 220 lf)
- To the art. 328 the judicial liquidation of companies in collective and limited partnership (ex 222 lf)
The entrepreneur is punished with imprisonment for three to ten years if he is declared bankrupt who:
1) has distracted, concealed, concealed, destroyed or dissipated all or part of its assets or, for the purpose of prejudicing creditors, has exposed or recognized non-existent liabilities;
2) has subtracted, destroyed or falsified, in whole or in part, with the aim of obtaining an unfair profit for himself or others or prejudice creditors, books or other accounting records or has kept them in guise by not make it possible to rebuild the assets or the movement of business.
The same penalty applies to the entrepreneur, declared bankrupt, who, during the bankruptcy procedure, commits any of the facts foreseen by n. 1 of the previous paragraph or subtracts, destroys or falsifies books or other accounting records.
The bankrupt is punished with imprisonment from one to five years, who, before or during the bankruptcy procedure, for the purpose of favoring, to the detriment of creditors, some of them, makes payments or simulates pre-emption rights.
Without prejudice to the other accessory penalties referred to in Chapter III, Title II, Book I of the Criminal Code, the conviction for one of the facts provided for in this article implies the inhibition of the exercise of a commercial enterprise for a period of ten years and the inability for the same duration to exercise management offices in any company.
The entrepreneur is punished with imprisonment from six months to two years, if he is declared bankrupt, who, outside the cases provided for in the previous article:
1) has made excessive personal or family expenses compared to his economic condition;
2) has consumed a significant part of its assets in transactions of pure fate or manifestly imprudent;
3) carried out serious reckless operations to delay bankruptcy;
4) has aggravated its failure, refraining from requesting the declaration of its bankruptcy or with other serious fault;
5) did not meet the obligations assumed in a previous bankruptcy or bankruptcy arrangement.
The same penalty applies to the bankrupt who, during the three years prior to filing for bankruptcy or from the beginning of the company, if this had a shorter duration, did not keep the books and other accounting records required by law or have them kept in an irregular or incomplete manner.
Without prejudice to the other accessory penalties referred to in Chapter III, Title II, Book I of the Criminal Code, the sentence implies the incapacity to exercise a commercial enterprise and the inability to exercise managerial offices in any enterprise for up to two years.
NB The only change is the express repeal, by art. 373 CCI, of the'art. 221 bankruptcy law, which provided that in case of application of the summary procedure in bankruptcy, the penalties for bankruptcy, the abusive use of credit and the report of non-existent creditors would be reduced by one third.
In the context, however, of Chapter II relating to crimes committed by persons other than the entrepreneur in judicial liquidation:
- In Article. 329 fraudulent bankruptcy committed by directors, general managers, auditors and liquidators of companies in liquidation (pursuant to art. 223 bankruptcy law)
- In Article. 330 simple bankruptcy acts committed by the same people (ex 224 bankruptcy law)
- In Article. 331 the abusive use of credit by directors and general managers of companies in legal liquidation (ex 225 bankruptcy law)
- In Article. 332 the reporting of non-existent claims by directors, general managers, and liquidators of companies in liquidation (ex 226 bankruptcy law)
- In Article. 333 the crimes of the entrepreneur's instigator in judicial liquidation: old 227 bankruptcy law
- In Article. 334 the private interest of the liquidator in the documents of the judicial liquidation (ex 228 bankruptcy law)
- In Article. 335 the acceptance of undue pay by the liquidator of the judicial liquidation (ex 229 bankruptcy law)
- In Article. 336 the failure to deliver or deposit things of the judicial liquidation by the liquidator (ex 230 bankruptcy law)
- In Article. 337 the extension of the provisions of articles 333 334 and 335 to the coadjutors of the liquidator who administers the judicial liquidation (ex 231 bankruptcy law)
- In Article. 338 the presentation of an application for admission to the liabilities of the judicial liquidation for a fraudulently simulated credit as well as the distraction without competition with the entrepreneur in judicial liquidation (ex 232 bankruptcy law)
- In Article. 339 the creditor's voting market with the entrepreneur in judicial liquidation or with others in the interest of the latter (ex 233 bankruptcy law)
- In Article. 340 the abusive exercise of commercial activity (ex 234 bankruptcy law)
The penalties established in article 322 apply to the directors, general managers, statutory auditors and liquidators of companies in liquidation, who have committed any of the events foreseen in the aforementioned article.
The penalty provided for in article 322, paragraph 1, applies to the aforementioned persons if:
- a) caused, or contributed to, the failure of the company, committing any of the facts provided for in articles 2621, 2622, 2626, 2627, 2628, 2629, 2632, 2633 and 2634 of the civil code.
- b) caused the failure of the company with malice or as a result of malicious operations.
The provision of article 322, paragraph 4 also applies in any case.
Also for Chapter II we find a single novelty consisting in the express repeal, by 373 CCI, of art. 235 bankruptcy law relating to the failure to transmit protests to the president of the court (provision, however, already not applicable after the Legislative Decree 5/2006 had repealed art.13 bankruptcy law).
Certainly interesting are the reward measures introduced by the decree in question and contained in art. 25 which identifies favorable tax and penal measures for the entrepreneur who has promptly filed annex'assisted settlement body of the crisis, implementing the requirements, or having submitted an application for access to the arrangement with creditors or for the approval of a restructuring agreement provided, in these cases, that the application was not subsequently declared inadmissible.
In particular, if the conditions of timeliness of the application exist and the damage is of special tenuity, a non-punishable cause is foreseen for all bankruptcy crimes: in this way "is significantly reduced l'area of criminal risk because it is very frequent that conduct of incorrect destination of'firm, but with extremely modest impoverishment of the assets and with minimal if almost nothing on the satisfaction of creditors, put in place even in a very old age, take on following the'opening of the insolvency proceedings, which are relevant as fraudulent bankruptcy offenses ”.
The cause of non-punishment in question is subjective in that it applies only to the person specifically involved in the timely management of the crisis situation and therefore does not extend to any competitors in the crime.
Instead, in the event that the damage is not of special tenuity, but an asset inventoried or offered to creditors that exceeds one fifth of the amount of debts is revealed at the time of the opening of the insolvency procedure, an attenuating circumstance is instead provided special with special effect, based on the same crimes for which the cause of non-punishment operates, with a reduction of the penalty up to half.
In conclusion, as a detailed note, please refer to the reading of art. 5 Legislative Decree 74/2000, cd. Tax Law, concerning the crime of omitted tax return, since the offense is not at all unusual for the offender to compete with the above-mentioned crimes.
Anyone who, in order to evade income or value added taxes, is not obliged to submit one of the annual declarations relating to said taxes, when the tax evaded is higher, with reference to to each of the individual taxes, at thirty thousand euros.
For the purposes of the provision envisaged in paragraph 1, the declaration submitted within ninety days of the expiry of the term or not signed or not written in a printout conforming to the prescribed model shall not be considered omitted.
The Cecatiello Law Firm advises its clients for the best management of criminal proceedings.
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