Professional Complicity in Fraudulent Bankruptcy: The Supreme Court's Position

1. The facts

   According to reports by «Il Sole 24 Ore - NT+ Diritto» and «Il Penalista», the case involves a legal and corporate consultant implicated in a complex corporate demerger. The professional had assisted a company, subsequently declared bankrupt, in transferring its most profitable business units and valuable real estate to a new entity, leaving only accumulated liabilities in the original company. The prosecution maintained that this legal framework lacked any genuine industrial purpose and served solely to remove assets from the bankruptcy estate. The proceedings reached the Supreme Court after the Court of Appeal upheld the professional's liability for the crime of fraudulent bankruptcy by misappropriation. In its ruling, the Supreme Court dismissed the consultant's appeal, rendering the conviction final and establishing that a professional is criminally liable where they supply the technical tools to conceal the unlawful nature of the operation.

2. 

   Legal framework

   The core of the matter lies in the joint application of key provisions:

   1. Article 216, paragraph 1, no. 1, Bankruptcy Law: defines fraudulent bankruptcy, penalizing anyone who misappropriates or conceals assets to the detriment of creditors with terms of imprisonment up to ten years.
   2. Article 110 of the Criminal Code: governs complicity, enabling the extension of the entrepreneur's criminal liability to anyone who, despite not being a director, provided a material or moral contribution to the offense.
   3. Crisis and Insolvency Code: although the facts predated its entry into force, the rule finds continuity in Article 322 of the Code, which maintains equal penal severity for asset-stripping conduct performed behind the shield of specialist advisory services.

3. Judicial precedents

   Case law from the Supreme Court clarifies that professional services cannot be deemed neutral when put toward unlawful ends. According to the court, a consultant is not a mere executor of the client's instructions if the advised transaction, such as an undervalued sale or a disproportionate demerger, clearly lacks economic rationale. Settled principles establish that a conviction does not require specific intent to harm creditors, as general intent suffices: namely, awareness that the transaction adversely impacts corporate assets combined with the foresight of potential insolvency. The Supreme Court reiterated that criminally relevant willful blindness occurs when a professional ignores obvious signs of insolvency, accepting the risk that their work facilitates asset diversion.

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8. Lessons for professionals

   1. Duty of verification: professionals must rigorously analyze a client's actual accounting situation before advising extraordinary transactions in crisis contexts.
   2. Documenting the rationale: every demerger or asset contribution must be supported by solid documentation establishing legitimate industrial and economic purposes.
   3. Duty to abstain: when faced with plans clearly intended for asset diversion, the consultant's sole protection lies in refusing the engagement to avoid complicity in the offense.
   4. Awareness of intent: professionals must bear in mind that even eventual intent, consisting in accepting the risk of prejudice to creditors, suffices for a final criminal conviction.

References: Art. 216 R.D. 267/1942Art. 110 Codice PenaleD.Lgs. 14/2019

Editorial oversight: Avv. Federico Papa·ICAMUpdated 12 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction