The criminal provision is art. 216 R.D. n. 267/1942 which, at the first paragraph n. 1), punishes with the imprisonment from three to ten years the fact of the entrepreneur who: “distracted, concealed, disguised, destroyed or dispelled all or some of his goods or, to prejudice the creditors, has displayed non-existent losses”.
The law, then, provides two relevant criminal behaviors: the cutback of the active assets of the company, and the fraudolent raise of the losses. The first general misconduct of distraction, includes whatever act aimed at deducting the goods of its specific guarantee purpose; it includes every act of the entrepreneur who gets some goods out of his asset, to the end of subtracting them to the bankruptcy procedure. The relevant case law shows that to prove the entrepreneur liability it is mandatory an economic evaluation of the unbalanced transaction occurred, and of the concrete danger that this pose to the company. On the matter, the Supreme Court ruled that: “the detachment of goods from the asset of the entrepreneur eventually insolvent (and consequently the depletion to the prejudice of the creditors), may be achieved in whatever form, no relevance in fact is given to the nature of the financial operation” (Cass. n. 44981/2008). The Court of Cassation specified that the illicit transfer is realized even among intragroup companies, that is companies belonging to the same business group, especially when one of these is already in economic difficulties; such companies are different legal entities, whereby the creditors of the depleted company could never get satisfied on the goods sold from one to another (Cass. 48518/2011).
The alternative conduct is the hypothesis of the entrepreneur who displayed non-existent losses; even this is characterized by dolus specialis, that is the specific intent to prejudice the creditors.
Art. 216 n. 2) then provides for the so called ‘fraudolent paper bankruptcy’, which happens when the entrepreneur “subtracted, destroyed or falsified, all or some of the accounting records or kept it in such a way as to make the financial structure and business operations impossible to track”; the crime takes shape when the records are made inaccessible, or indeciphrable, or again, when where subject to irreversible alteration, always to the detriment of the creditors. The generality of the provision suggests that this form can be shaped out a variety of misconducts, along with the required mens rea.