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The danger of blaming conduits whose actual damage was very disputable, if not clearly non-existent, was not, however, a unique requirement of the type considered. Also the other circumstances of failure, proper and improper (excluding those governed by Articles 223, paragraph 2, No. 2, and 224, No. 2, considered as an event illicit, outlined by the bankruptcy), not localizing over time an area of criminal danger (13), allowed (and allow) the feasibility of actions implemented even in periods prior to the emergence of an actual risk of insolvency.

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The corporate criminal regulations envisaged by the previous bankruptcy order.

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It is necessary to consider some corporate criminal law provisions foreseen by the previous bankruptcy law in order to make it less difficult, now that in the criminal law of the company sector the regulation foreseen by the art. 2621 - 2640 of the Italian Civil Code, the comparison with the current rules envisaged by art. 4, Legislative Decree no. 61/2002.

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This is certainly not the area or the appropriate place to examine the corporate criminal rules enucleated in bankruptcy regulations (14); it is, however, for a quick listing of the same (as well as the most important criminal provisions eliminated from the list of bankruptcy legislation) that allows identifying the actions (15) (the implementation of which, in situations of failure of the company, generated the possibility of disruption under examination) and safeguarded legal objects.

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The identification of the legal objects safeguarded by the penal regulations of the company constitutes an obligatory path for the purpose of ascertaining the compatibility of the graft in the bankruptcy legislation, since it must be considered that the juridical objectivity deriving from the corporate offense, if not attributable to the interests of the corporate creditors assets (and therefore compliant with the legal objectivity of the bankruptcy) (16) is not dissipated, but generates a pluri-offensive circumstance (17).

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For this reason, the most frequent reproaches addressed to the legislation that incriminates the failure from an industrial crime concerned the insertion in art. 223, paragraph 2, n. 1, of corporate criminal law regulations that are different from the damage caused by the bankruptcy and the elimination, on the contrary, of regulations that tended to safeguard the assets of the company, hence the interest of creditors.

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The current redefinition of the legislation that incriminates the bankruptcy has considered the reproaches addressed to the antecedent system, trying to introduce, in bankruptcy law, only corporate penal provisions comparable, as regards the safeguarded legal objects, to the failure; it should also be pointed out that such a critical situation, and the subsequent commitment undertaken by the legislation for overcoming it, has lost value now that the failure of the company to have been amended has been the result of a breach of damage, determined by the need to implement the fact, governed by the same corporate criminal law, causes, or contributes to causing, the bankruptcy of the company. Article. 223, paragraph 2, n. 1, cited, first of all, the actions governed by art. 2621 of the Italian Civil Code, which considered three different forms of tort.

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The social information is not true. Article. 2621, n. 1, civil code, provided as not true social information the actions of officials, associates, administrations, directorates general, mayors and creditors, which in the minutes, in statements or other social documentation, fraudulently highlight facts untrue respect to the institution or to the financial situation of the company or conceal all or part of the facts related to the same circumstances (the type of criminal business could be prosecuted ex officio and the sentence was the prison from 1 to 5 years and the penalty converted into euro from 1032 up to 10329 $

The definition in the jurisprudential field (18) had redefined the offense from a pluri-offensive point of view, on the one hand, contemplating that the legislation that incriminated the failure was aimed at protecting the social interest on the basis of reliability and the correctness of the social information and also the personal interests, of a patrimonial nature, attributable to company, to the associates and to the liquidators, on the other side, highlighting how to insert the illicit was enough, in addition to the collective damage, the simple risk of damage of even one of the aforementioned assets.

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Contact us in case of detention or criminal or civil problems. The law firm in London, New York, La Vegas, Rome, Naples, Milan, Italy, Germany, Spain, France and has over 15 foreign branches, is directed towards criminal and international law, a format for criminal lawyers mainly deals with the defense of people accused of crimes penalties such as drug trafficking, financial and economic crimes, white-collar crimes, murder, violence, rape and any type of crime. Contact us now for effective criminal defense.

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