Fraudulent bankruptcy: flexible additional penalties, determined on a case-by-case basis

It is unconstitutional the provision of additional penalties with a fixed duration of ten years (in particular, incapacitation to exercise a commercial enterprise and inability to hold companies’ management offices) for all those who have been convicted of fraudulent bankruptcy.

The Constitutional Court of the Italian Republic stated so with sent. n. 222/2018, filed on 5.12.18 (authored by Francesco Viganò), as the outcome of the legitimacy judgment promoted by the first section of the Supreme Court of Cassation with reference to articles 216, final clause, and 223, last clause, of the Bankruptcy Law (Royal Decree No. 267/1942), regarding the part where the two articles provide that the conviction for one of the facts sanctioned therein – namely, fraudulent bankruptcy and bankruptcy committed by persons other than the entrepreneur – compulsorily determine, for a period of ten years, the application of the additional penalties of incapacitation to exercise a commercial enterprise and inability to hold companies’ management offices.