Italian Supreme Court: on corporate demerger and fraudulent bankruptcy

By judgment No. 32909/2026, published on 4 September 2026, the Italian Supreme Court, Fifth Criminal Section, ruled on fraudulent asset-stripping and documentary bankruptcy in the context of an extraordinary corporate demerger.

The Court clarified that a demerger, being an extraordinary transaction expressly governed by law, does not in itself constitute conduct amounting to asset-stripping. However, it may constitute the offence of fraudulent bankruptcy by asset-stripping where, on a concrete assessment of its structure and effects, it is found to be deliberately depleting and prejudicial to the creditors of the demerged company. For these purposes, relevant factors include, among others, the economic and financial situation of the company, the extent of the assets and liabilities transferred, the actual restoration of balance-sheet equilibrium, and the final destination of the assets.

The Court further reaffirmed that fraudulent asset-stripping bankruptcy requires general intent, it being sufficient that the assets were knowingly allocated to purposes unrelated to the business, with awareness of the resulting risk to the security of creditors.

As regards documentary bankruptcy, the Court distinguished between the various forms of offence provided for under Article 216 of Royal Decree No. 267/1942 and clarified their relationship with the tax offence of concealment or destruction of accounting records under Article 10 of Legislative Decree No. 74/2000, identifying a relationship of reciprocal specialty between the two offences.

To access the decision, click here.