Two busissmen had been brought to trial – among other things – for the crime of fraudulent bankruptcy of assets, because – according to the accusation – they had “ diverted the entire company” in favour of a company established shortly before the bankruptcy, and “ attributable to the defendants, depriving the bankrupt company of all its assets, in the absence of a formal deed of transfer, and in the absence of any consideration”.
The two defendants were convicted by the Court of Milan, Criminal Section I, whose sentence was later confirmed by the Court of Appeal of Milan, Criminal Section II.
Lawyers Mauro Carelli and Giuseppina Cimmarusti intervened in the appeal to the Court of Cassation, at the end of which, the Supreme Court, Criminal Section V, with sentence no. 23577/2024, hearing 04/23/2024, filed 06/12/2024, in accepting the appeal presented, annulled the contested sentence, referring – for a new trial – to another Section of the Court of Appeal of Milan.
In particular, the Court of Cassation, reiterating the consolidated teaching of legitimacy according to which, " for the purposes of the configurability of the crime of fraudulent bankruptcy of assets, it is necessary that the distraction is referred to legally and economically assessable relationships , thus excluding that the mere continuation of the activity in another form by the entrepreneur, without there having been an illicit transfer of such relationships from one legal entity to another, assumes relevance", stated:
that “ the commercial goodwill of a business” is not susceptible to distraction unless, at the same time, the business itself has also been the object of the disposition “or at least the business factors capable of generating the goodwill”;
that "the diversion of customers" can constitute the object of diversion "only when it carries out an act of unjustified disposition of legal relationships susceptible to economic evaluation, that is when it has as its object the unjustified transfer of contracts already stipulated with customers and employees", and cannot be deduced from the " mere assonance between the names of the two companies" (bankrupt and newly established).
In this case – concluded the Supreme Court – “ it is in no way specified whether capital goods or goods belonging to the bankrupt company were diverted or any relevant legal relationship (…) it is therefore not clear in what terms the object of the diversion would have been the
The Court of Appeal of Milan, in the referral hearing, making good use of the principles just recalled, has – unanimously and irreproachably – acquitted the two defendants, holding that:
in order for a distractible “ goodwill ” to be considered present, “ production factors and an aptitude of the company to produce income must be identified, which, in the case in question, is non-existent ”;
nor was the “ diversion of customers” proven, since “there was no evidence of contracts in place with the bankrupt company that were financially relevant , given the type of business - as indicated by the liquidator himself during the hearing - the customers were private and occasional, turning to the business in case of need for purchases or repairs”, but “no contract was in place, no legal relationship susceptible to economic evaluation”, specifying how “ the opening of a new business, even in the same area and with part of the name - without registration - reproduced in the new name is not sufficient to consider the contested diversion .”
Attached:
sentence no. 23577/2024, Cassation. V Pen., hearing. 04/23/2024, dep. 12/06/2024;
extract from the Office of the “ Monthly review of criminal jurisprudence of the Court of Cassation ” for the month of June 2024;
sentence no. 6009/2024, C. App. Milano, III Pen., hearing. 11/18/2024, dep. 21/11/2024.
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