Section I of Chapter II, Title II of the Penal Code, approved by Law no.35/2014, of 31st of December (“PC”) is dedicated to “bankruptcies, fraud and other frauds”.
Paragraph 1 of art.. 295º, of the PC establishes that “[t]hose who, in cases set out by the Commercial Code, are considered to be perpetrators of the crime of fraudulent bankruptcy or insolvency, shall be punished with a penalty of two to eight years of long term imprisonment.”
On the other hand, art. 297º also of the PC establishes that “[a]ny debtor which is a non-commercial entrepreneur, who constitutes himself, as insolvent by hiding or maliciously alienate/dispose of his assets, shall be punished with a sentence of three months to two years of imprisonment.”
However, since the entry into force of Decree-Law No. 1/2013, of 4 July – which approved the legal framework for insolvency and commercial business recovery (“Insolvency Law“) –the Insolvency institute is applicable to both commercial and non-commercial entrepreneurs, and the bankruptcy institute ceased to be regulated in our legal system.
Also, and contrary to what seems to result from paragraph 1 of art. 295º of the PC, the Commercial Code does not make any reference to crimes/offences of fraudulent bankruptcy insolvency, nor does it refer to whom should be considered as perpetrators of such crimes.
How arts. 295º to 297º of the PC should be dealt with? Is it that they have no practical applicability and the crimes dealt therein should not be considered?
Article written by: Rita Donato and Telmo Ferreira of our member firm Couto, Graca & Associados