13 Apr financial infidelity of the director

L’art. 2634 c.c. provides for the criminal case of patrimonial infidelity and states: The administrators, the general managers and liquidators, that, having an interest in conflict with that of the company, for the purpose of obtaining an unfair profit or other advantage for oneself or others, carry out or contribute to deliberating acts of disposal of company assets, intentionally causing financial damage to the company, are punished with imprisonment from six months to three years.

The same penalty applies if the act is committed in relation to assets owned or managed by the company on behalf of third parties, causing financial damage to the latter.

In any case, the profit of the associated company or group is not unfair, if compensated by advantages, achieved or reasonably foreseeable, arising from connection or membership in the group.

For the crimes envisaged in the first and second paragraphs, the offended person shall file a complaint.

It appears particularly controversial, then, the relationship between financial infidelity and embezzlement, which the jurisprudence used in order to be able to punish the conduct classified today, after the reform (d.lgs. 11 April 2002, n. 61), in the crime referred to in the art. 2634 c.c.. The two behaviors are in a reciprocal relationship, both belonging to the general category of distractive behaviors, ma, while financial infidelity, translating into an abuse of management of social assets, is characterized by an arbitrary use of the asset which is used for purposes other than that for which it was intended, in the misappropriation of social assets, the administrator behaves towards the good as if it were his own, taking it away from society in an irreversible and definitive way, expropriating, that is, the good society.

The jurisprudence has intervened several times on the relationships between the two cases.

With the first sentence of 7 October 2003, the Court of Cassation established that the art. 2634 c.c. regulates situations of conflict of interest, and non-typical conduct of management abuse, pointing out that financial infidelity is lex specialis compared to embezzlement (art. 646 c.p.), that is, in a unilateral specialty relationship, presenting a series of specialized elements such as conflict of interest, the acts of disposal of social assets, in addition to the intentionality of the conduct. In subsequent sentences, the Supreme Court, clarified that the crime of embezzlement can still be applied in the corporate context, when the administrators, the general managers and liquidators have been responsible for acts of aggression against the company's assets, highlighting that «the intent of the legislator is to punish […] excess of power through misuse", while in embezzlement the agent carries out acts of aggression against the assets, appropriating the entity's money or movable property, of which he is available due to his position.

In the crime of patrimonial infidelity, in particular, there are different subjects, since it is a proper crime, but above all they are the requirements that characterize it, such as conflict of interest, the acts of disposal of company assets from which financial damage to the company must arise, the intentionality of the financial damage, the specific intent that, beyond the unfair profit, also includes any other benefits, which make it ontologically different from embezzlement.

Anyway, that one wishes to believe that a unilateral specialty relationship exists between the two cases or, vice versa, a relationship of mutual specialty, there is no doubt that the two figures are ontologically and conceptually different and find application in different and differentiated contexts. Indeed, as noted by the Court of Cassation, misappropriation translates into acts of aggression against the company's assets, with which the administrator appropriates money or movable things available to him due to his position, financial infidelity refers to acts of abusive management in which the social good, following dispositions by the administrator, undergoes a different destination from its institutional purposes.

«The crime of infidelity is configurable, when the administrator, to pursue a profit goal for oneself or others to the detriment of the company, makes use of the negotiation schemes typical of business management: purchase and sale of goods, payments or provision of services. Instead, the typical appropriative fact is integrated in the case in which the administrator, moving outside of negotiation activity, achieve personal or third party enrichment, through the arbitrary acquisition of social goods. In such circumstances the director takes advantage of the functional position held to achieve damage to the company, uti dominus behavior, just like any active subject of embezzlement".