Preferential bankruptcy under Italian Law
“Preferential bankruptcy” (bancarotta preferenziale) is the fraudulent preference granted by the entrepreneur who chooses to deliberately satisfy some creditors rather than others, thus violating their equal position, protected by the law.
In Italy, this crime is provided by art. 216 of the Italian Bankruptcy Law, and set forth the penalty of imprisonment from 1 to 5 years for the insolvent who, during the bankruptcy procedure, favours the repayment of certain creditors, to the detriment of others.
The assumption of preferential bankruptcy is that the entrepreneur is in a state of insolvency. The basic requirement is that the insolvent entrepreneur must perform payments by simulating pre-emptive securities to the benefit of some creditors and to the detriment of others. If there is no damage to other creditors, then the crime is not committed. Payment to creditors can take any form as long as it is suitable to repay a debt.
The creditor who receives the payment is not under the obligation to refuse the payment. However, he can be considered as participating to the crime only if he has some way stimulated the entrepreneur to prefer him to the detriment of other creditors.