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The illicit fraudulent failure in the corporate area has been altered both because the circumstances, main features and fundamental aspects of the alleged corporate crimes have changed, and because some forms of malpractice have been canceled, both due to the presumption of a fact, the bankruptcy, in causal relationship with the mandate of the planned actions.
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The term bankruptcy (1) is now part of the legal sector to highlight the events of fraudulent bankruptcy (Article 223, paragraph 1) and simple (Article 224, No. 1), implemented by administrative institutions (officials and liquidators), from the management and control bodies (the mayors only) of companies that declare bankruptcy.
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Commonly the notion indicates a sub-category of improper failure (2), that is of the established instability, as to the active person of the offense, by the fact of being performed by subjects other than bankruptcy, different from the commercial industrial, as for the material cause, by the fact to be connected to the assets and accounting of property of persons other than the one who committed the illicit activity (3).
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The notion of corporate instability also refers to cases of fraudulent and simple failure, provided for by articles 223, paragraph 2, and 224, n. 2. The art. 223, paragraph 2, n. 2, and the art. 224, n. 2, moreover, they condemn, by fraudulent and simple failure, the above mentioned corporate institutes that have, through fraud (or because of malicious actions) or breach of the duties established by the legislation, caused (in the second case also worsened) the corporate bankruptcy.
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Article. 223, paragraph 2, n. 1, condemns, while, due to fraudulent collapse and with the convictions pursuant to art. 216, paragraph 1, as long as the bankruptcy of the company is declared, the corporate institutes that have carried out actions defined as corporate offenses by the regulations of the Civil Code.
The latter provision was brought to the attention of the legislation on the basis of the accepted transformation of the corporate crimes, established by art. 11, Delegated Law of 3 October 2001, n. 366 (in short, Law No. 366/2001) (4) and applied by Legislative Decree 11 April 2002, n. 61, effective since last 16 April 2002 (hereafter, Legislative Decree No. 61/2002) (5); Article. 11, lett. g), of the law n. 366/2001 called for "reshaping the law on bankruptcy offenses that call corporate offenses into question, stating that the sentence only applies to the additional conduct of corporate offenses that have caused or contributed to causing bankruptcy".
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The verification of the changes caused to the conformation of such a crime (which will henceforth be referred to as a disruption of the company s offense) suggests various analyzes of the regulations in force, mainly on the definition of the same approved in the jurisprudential field.
The disruption of corporate malfeasance in the regulations in force. Article. 223, paragraph 2, n. 1, in the law in force, presumed that the officials, directors, auditors and liquidators of companies that had declared bankruptcy were applied the sentence expected by paragraph 1 of art. 216 (6) if they had completed "each of the actions provided for in articles 2621, 2622, 2623, 2628, 2630, paragraph 1, of the Civil Code ".
The definition in the jurisprudence (7) and, in part, that of the doctrine (8) did not admit that the legislation under examination inserted a situation of aggravation of the company crimes foreseen and the option fell on the independent nature of the offense, validated from the withholding also to the same actions of failure of the situation of which to the art. 219, paragraph 2, n. 1 (9).
The most corroborated legal framework assessed the type of presumed risk (10): it considered, above all, the presumed outrage of the safeguarded legal objects, in particular the interest of creditors in protecting the social integrity of capital.
Another fundamental consideration was that, for the purpose of integrating corporate malpractice, the existence of a causal relationship between the action envisaged by the provisions of the Civil Code and the bankruptcy of the company (11) was not envisaged.
It was however normal that, due to the company malfeasance, actions (mainly untrue social information) committed over time were charged, even if they were attributable to persons different from those who, with subsequent illicit actions, had caused the company s financial crisis. (12).