Fraud in anticipation of dissolution.
307. (1) When a company has been dissolved in accordance with the provisions of article 214, any person, being a past or present officer of the company, shall be guilty of an offence if, within the twelve months immediately preceding the deemed date of dissolution, he has -
(a) concealed any part of the company’s property, or concealed any debt due to or from the company; or (b) fraudulently removed any part of the company’s
property; or
(c) concealed, destroyed, mutilated or falsified any book or paper affecting or relating to the company’s property or affairs; or
(d) made any false entry in any book or paper affecting or relating to the company’s property or affairs; or
(e) fraudulently parted with, or altered any document affecting or relating to the company’s property or affairs; or
(f) pledged or disposed of any property of the company which has been obtained on credit and has not been paid for, unless the pledging or disposal was in the ordinary course of the company’s business; or
(g) by any false representation or other fraud, obtained property for or on behalf of the company on credit which the company does not subsequently pay for; or (h) exercised any false representation or fraud for the
purpose of obtaining the consent of the creditors of the company or of any of them to an agreement with reference to the affairs of the company or to its dissolution.
(2) Such person shall be guilty of an offence if within the period mentioned in subarticle (1) he has been a party to the doing by others of any of the things mentioned in paragraphs (c), (d)and (e) thereof, and he shall be guilty of an offence if, at any time after the deemed date of dissolution, he does any of the things mentioned in paragraphs (a)to(h) of the said subarticle, or is party to the doing by others of any of the things mentioned in paragraphs (c)to (e)of that subarticle.
(3) It shall be a defence for a person charged to prove that he had no intent to defraud or to conceal the affairs of the company or to defeat the law.
(4) Where a person pledges or otherwise disposes of any
property in circumstances which amount to an offence under subarticle (1)(f), every person who receives the property on pledge or otherwise receives the property knowing it to be pledged or disposed of in such circumstances, shall be guilty of an offence.
(5) For the purposes of this article, the expression "officer" shall include any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.
(6) A person guilty of an offence under this article shall be liable on conviction to a fine (multa) of not more than one hundred thousand liri or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.
Fraud by officers of companies being wound up. 308. (1) When a company is being wound up by the court or
voluntarily, a person shall be guilty of an offence if, being an officer of the company, he -
(a) has made or caused to be made any gift or transfer of, or charge on, or has caused or connived at the enforcement of any executive title against, the property of the company; or
(b) has concealed or removed any part of the property of the company since, or within two months before, the date of any unsatisfied judgment or order for payment
of money against the company.
(2) A person shall not be guilty of an offence under subarticle (1) if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud the company’s creditors.
(3) A person guilty of an offence under this article shall be liable on conviction to a fine (multa) of not more than one hundred thousand liri or imprisonment for a term not exceeding five years or to both such fine and imprisonment.
(4) For the purposes of this article, the expression "officer" shall include any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.
Other offences by officers of companies being wound up.
309. (1) If any person, being a past or present officer of a company -
(a) does not to the best of his knowledge and belief fully and truly reveal to the liquidator all the property, movable and immovable, corporeal or incorporeal, of the company, and how and to whom and for what consideration and when the company disposed of any part thereof, except such part as has been disposed of in the ordinary course of the business of the company; or
(b) does not deliver up to the liquidator, or as the liquidator directs, all or such part of the property of the company as is in his custody or under his control, and which he is required by law to deliver up; or
(c) does not deliver up to the liquidator, or as the liquidator directs, all accounts, accounting records and documents in his custody or under his control belonging to the company and which he is required by law to deliver up; or
(d) makes any material omission in any statement relating to the affairs of the company; or
(e) knowing or believing that a false debt has been proved by any person in the winding up, fails for the period of one month to inform the liquidator thereof; or
(f) after the dissolution of the company prevents the production of any book or paper affecting or relating to the property or affairs of the company; or
(g) after the dissolution of the company or at any meeting of the creditors of the company within twelve months immediately preceding the dissolution of the company attempts to account for any part of the property of the company by fictitious losses or expenses,
he shall be guilty of an offence and shall be liable on conviction to a fine (multa) of not more than one hundred thousand liri or to imprisonment for a term not exceeding five years or to both such fine and imprisonment if, at the time of the commission of the
alleged offence, the company is being wound up, whether by the court or voluntarily, or if, subsequent to the commission of the alleged offence, the company is dissolved in accordance with the provisions of article 214.
(2) For the purposes of this article, the expression "officer" shall include any person in accordance with whose directions or instructions the directors of a company have been accustomed to act.
Defence to a charge under article 309. 310. It shall be a good defence to a charge under any of
paragraphs (a), (b), (c) and (d) of article 309(1), if the accused proves that he had no intent to defraud; and to a charge under paragraph (f) of the said article, if he proves that he had no intent to conceal the state of affairs of the company or to defeat the law.
Fraud by contributory. 311. If any contributory of any company being wound up
destroys, mutilates, alters or falsifies any accounts, accounting records, documents, books or securities, or makes or is party to the making of any false or fraudulent entry in any register, accounting record or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence and shall be liable on conviction to a fine (multa) of not more than one hundred thousand liri or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.
Remedy against delinquent directors, liquidators, etc. 312. (1) The provisions of this article shall apply if in the
course of the winding up of a company, whether by the court or voluntarily, it appears that a person who -
(a) is or has been an officer of the company; (b) has acted as liquidator of the company; or
(c) not being a person falling within paragraphs (a) and (b), is or has been concerned, or has taken part in the promotion, formation or management of the company, has misapplied or retained or become accountable for, any money or other property of the company, or been guilty of any improper performance or breach of duty in relation to the company.
(2) The court may, on the application of the official receiver or the liquidator, or of any creditor or contributory, examine the conduct of any person referred to in subarticle (1) and may compel him -
(a) to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks fit; or
(b) to contribute such sum to the company’s assets by way of compensation in respect of the improper performance or breach of duty as the court thinks fit.
Fraud by officers of companies subsequently dissolved. 313. (1) If any person, being at the time of the commission of
the alleged offence, an officer of a company which is subsequently dissolved in accordance with the provisions of article 214, has -
induced any person to give credit to the company; or (b) with intent to defraud creditors of the company, made
or caused to be made any gift or transfer of or charge on, or has caused or connived at the enforcement of any executive title against, the property of the company; or
(c) with intent to defraud creditors of the company, concealed or removed any part of the property of the company since, or within two months before, the date of any unsatisfied judgment or order for payment of money obtained against the company,
he shall be guilty of an offence and shall be liable on conviction to a fine (multa) of not more than one hundred thousand liri or imprisonment for a term not exceeding five years or to both such fine and imprisonment.
(2) A person shall not be guilty of an offence under subarticle (1) by reason of conduct constituting an offence under paragraph (b) of the said subarticle which occurred more than five years before the date of deemed dissolution.
Liability when proper accounting records are not kept by insolvent company.
314. If, where a company is dissolved, it is shown that proper accounting records were not kept by the company throughout the period of two years immediately preceding the dissolution or the period between the registration of the company and the dissolution, whichever is the shorter, and it is furthermore shown that the company was, at the moment of its dissolution, unable to pay its debts, every officer of the company who is in default shall, unless he shows that he acted diligently and that in the circumstances in which the business of the company was carried on the default was excusable, be guilty of an offence and liable on conviction to a fine (multa) of not more than twenty thousand liri, or imprisonment for a t e r m n o t e x c e e d i n g t h r e e y e a r s , o r t o b o t h s u c h f i n e a n d imprisonment.
Responsibility for fraudulent trading.
315. (1) If in the course of the winding up of a company, whether by the court or voluntarily, it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court on the application of the official receiver, or the liquidator or any creditor or contributory of the company, may, if it t h i n k s p r o p e r s o t o d o , d e c l a r e t h a t a n y p e r s o n s w h o w e r e knowingly parties to the carrying on of the business in the manner aforesaid be personally responsible, without any limitation of liability for all or any of the debts or other liabilities of the company as the court may direct.
(2) Where the business of a company is carried on with such intent or for such purposes as is mentioned in subarticle (1), every person who was knowin gly a party in the carry ing on of the business in the manner aforesaid, shall be guilty of an offence and liable on conviction to a fine (multa) of not more than one hundred thousand liri or imprisonment for a term not exceeding five years, or to both such fine and imprisonment.
Wrongful trading. 316. (1) The provisions of this article shall apply where a
company has been dissolved and is insolvent and it appears that a person who was a director of the company knew, or ought to have known prior to the dissolution of the company that there was no reasonable prospect that the company would avoid being dissolved due to its insolvency.
(2) The court, on the application of the liquidator of a company to which this article applies, may declare the person who was a director referred to in subarticle (1) liable to make a payment towards the company’s assets as the court thinks fit.
(3) The court shall not grant an application under this article if it is satisfied that the person who was a director knew that there was no reasonable prospect that the company would avoid being dissolved due to its insolvency and accordingly took every step he ought to have taken with a view to minimising the potential loss to the company’s creditors.
(4) For the purposes of subarticles (2) and (3), the facts which a director of a company ought to know or ascertain, the conclusions which he ought to reach and the steps which he ought to take, are those which would be known or ascertained, or reached or taken, by a reasonably diligent person having both -
(a) the knowledge, skill and experience that may
reasonably be expected of a person carrying out the same functions as are carried out by or entrusted to that director in relation to the company; and
(b) the knowledge, skill and experience that the director has.
(5) For the purposes of this article, "director" includes a person in accordance with whose directions or instructions the directors of the company are accustomed to act.
Restriction on reuse of company names.
317. (1) The provisions of this article shall apply to a person who, on or after the appointed day, was a director of a company ("the company being wound up") at any time in the twelve months preceding its dissolution and the company is insolvent upon such dissolution.
(2) Except with leave of the court, or in such circumstances as may be prescribed, any person referred to in subarticle (1) shall not at any time during the winding up of the company and up to two years from the date when its name is struck off the register -
(a) be a director of a company that is known by a name which is prohibited by virtue of the provisions of subarticle (3): or
(b) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company; or
(c) in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on under such a prohibited name.
(3) For the purposes of subarticle (2), a name is a prohibited name in relation to any person referred to in subarticle (1) if -
(a) it is a name by which the company being wound up was known at any time in that period of twelve months; or
(b) it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company.
(4) A person who acts in contravention of the provisions of this article shall be guilty of an offence and liable on conviction to a fine (multa) of not more than five thousand liri. Such person shall also be personally responsible for the debts of any company referred to in subarticle (2)(a)and(b) which are incurred while he acts in relation to the company in the manner described in those paragraphs.
(5) For the purposes of this article, "director" includes a person in accordance with whose directions or instructions the directors of the company are accustomed to act.
Reference by court for prosecution of delinquent officers, etc. Amended by: XXIV.1995.362.
318. If it appears to the court in the course of a winding up by the court that any past or present officers, or any member of the company, or any other person, has been guilty of any offence in relation to the company which is an offence under this Act or for which he is otherwise criminally liable, the court shall, either on the application of any person interested in the winding up or of its ow n motion , refer the matter to the Commissioner of Police through the Registrar of Courts.
Report by liquidator for prosecution of delinquent officers, etc.
319. If it appears to the liquidator in the course of a voluntary winding up that any past or present officer, or any member, of the company has been guilty of an offence in relation to the company which is an offence under this Act or for which he is otherwise crimin ally liable, he shall forthwith repo rt the matter to the Commissioner of Police.
Disqualification orders.
Amended by: XXIV.1995.362.
320. (1) The court, upon the application of the Attorney General or the Registrar, may make a disqualification order against any person who is found guilty of an offence under this Act, other than an offence punishable only with a fine, or who has infringed any requirement of this Act with the consequence that the person becomes liable to contribute to the assets of a company or becomes personally liable for the debts of the company.
(2) The court, upon the application of the Attorney General or the Registrar, may also make a disqualification order against any person if it is satisfied -
(a) that such person is or has been a director of a company which at any time has become insolvent, whether while he was a director or subsequently; and
(b) that his conduct as a director of that company, either taken alone or taken together with his conduct as a