04 Nov documentary bankruptcy

The hypothesis of failure to keep accounting records can fall within the scope of documentary bankruptcy, but only if it is ascertained that the purpose of the omission was to cause harm to creditors, given that otherwise it would be impossible to distinguish this case from that one, similar from a material point of view, provided for by art. 217 I.fall. (as far as it refers only to compulsory accounting), punished under the title of simple documentary bankruptcy. On the other hand, from an objective point of view, it is clear that the entrepreneur cannot at the same time fail to establish the accounting books and keep them "in such a way as to make it impossible to reconstruct the assets", the latter conduct which presupposes the fraudulently caused unreliability of actually existing records.
Simple documentary bankruptcy differs from fraudulent bankruptcy not only due to the different material object (the only accounting records required in simple bankruptcy, against all documentation necessary for the complete reconstruction of the assets and movements of the company) and for the different conduct (failure to establish and irregular keeping of accounting records), but also for the further objective requirement represented by the impossibility of reconstruction (which represents the event of the irregular holding), element, instead, unrelated to the typical fact described in the art. 217, second paragraph, of bankruptcy law.
And so much, from a subjective point of view, translates into the need for this element to also be covered by the necessary subjective participation of the agent. So the fraud, generico, which supports the case of general documentary fraudulent bankruptcy, it must include awareness of the irregular keeping of accounting documentation, as much as the conscious representation of the subsequent impossibility of reconstructing the bankrupt's assets and business movements, albeit in terms of eventualities (Cass. 4352/23).