27 Nov fraudulent documentary bankruptcy

On the subject of bankruptcy crimes, art. 216, co. 1, n. 2, L.F. it sets up two distinct hypotheses of fraudulent documentary bankruptcy. The first consists in subtraction, destruction or falsification of records and is characterized by the specific intent of procuring an unjust profit for oneself or others or causing prejudice to creditors. The second – cd. general – occurs when the accounts are kept in such a way as not to make it possible to reconstruct the assets or the movement of business, this is in the case in which said impossibility is absolute, and when it simply hinders the investigations by the bankruptcy bodies. Having regard to the subjective side, this second form of documentary bankruptcy is a generic willful crime, which consists of awareness, in the hands of the agent, that, through the voluntary keeping of accounts in an incomplete or confused manner, it may be impossible to reconstruct the events of the assets or business trends; is excluded, against, the need for fraud to be supplemented by the intention to prevent said reconstruction, as the term 'so as not to make it possible to reconstruct the assets or the movement of business' connotes the conduct and not the will of the agent, so the idea that it requires specific malice must be rejected (Cass. 77/2020).