Mario Zanchetti

The paper retraces the debate amongst scholars and courts on the role of bankruptcy filing in the offence of the fraudulent bankruptcy before the filing of bankruptcy, starting from the clear analysis by Alfredo Rocco, to reach the decision by the United Sections of the Italian supreme court ("Corte di cassazione") of January, 25 1958, which consolidated a frankly unconstitutional reading of the offence, under the three profiles of harmfulness, casual connection between the behaviour and the dislocation-insolvency-bankruptcy, and culpability. The paper the considers the possible solutions for the incompatibility with constitutional norms, which the ruling Court has been suggesting since the Eighties and until the most recent decisions. The paper detects four possible solutions, all individuated bu the Supreme court in different decisions not easily compatible one with the other. A first corrective is the individuation of the blameworthiness of the crime of bankruptcy before the filing of bankruptcy in the moment of the behaviour, based on the analysis of Delitala and Pedrazzi; a second one is the individuation of the blameworthiness in the moment of bankruptcy filing, with the following emphatisation od reparatory behaviours before the insolvency procedure; a third corrective is the reading of the dislocation-insolvency-bankruptcy as an event of the offence; a forth in the enhancement of the mens rea.