Il recupero dell’offensività nel reato di bancarotta fraudolenta patrimoniale: una proposta di modifica normativa

[Autom. eng. transl.] This contribution, after having briefly analyzed the crime of fraudulent patrimonial bankruptcy, focuses on the state of the art relating to the problem of the offensiveness of the conduct of the crime in question. In particular, in examining the doctrinal and jurisprudential evolution on the subject, it is noted that in the past the crime in question was considered a crime of presumed danger; this determined the possibility for the Judge, through an operation defined as "infinite regress", to review every operation carried out during the life of the company, in search of some distracting conduct. In more recent times, on the basis of the teachings of the Great Masters of penal law doctrine, the jurisprudence has provided a reading of patrimonial bankruptcy that is more responsive to the principles of offensiveness and personality of criminal liability, qualifying bankruptcy as a crime of concrete danger. The author, however, observes how, although this interpretation is certainly appreciable, there is still the risk of continuing to give bankruptcy criminal relevance to distractive conduct committed when the company was still in bonis; and therefore, to conduct that is concretely harmless to the property protected by art. 216 Bankruptcy Law The objective of the project, in the light of what has been summarized, is to propose a modification of the art. 216 L.F (which from 16 May 2022, unless extended, will merge into the new art. 322 of the Crisis Code) which limits the bankruptcy criminal relevance of distractive conduct to a moment of crisis of the company, according to the definition contained in the Crisis Code.