Commentary on Judgment No. 33878 of 2023: Curator's Private Interest in Bankruptcy

Judgment No. 33878 of July 4, 2023, issued by the Court of Cassation, offers an important reflection on the role of the bankruptcy trustee and their conduct within insolvency proceedings. The central issue concerns the definition of the crime of private interest by the trustee, a matter of crucial importance for transparency and legality in bankruptcy proceedings.

The Crime of Private Interest by the Trustee

The headnote of the judgment reads:

"Private interest of the trustee - Definition. The crime of private interest by the trustee in bankruptcy proceedings is established when the trustee, in carrying out their duties, through the performance of acts that are formally and substantially legitimate, exploits their office with the awareness of pursuing an interest not exclusively linked to the specific purpose of bankruptcy administration, the realization of damage to creditors not being relevant for the commission of the offense."

This definition guides us to understand that, even if the acts performed by the trustee may appear legitimate, if they are aimed at satisfying personal interests and not those of the creditors, a crime is constituted. This aspect underscores the importance of ethical and transparent conduct by trustees, who must operate exclusively for the benefit of the bankruptcy estate.

Legal Implications

The judgment is part of a well-defined regulatory framework, rooted in Law of March 16, 1942, No. 267, which governs bankruptcy proceedings. In particular, Article 228 of the aforementioned law establishes the duties and responsibilities of the trustee, while Articles 30 and 32 provide further details on the conditions for the legitimacy of acts performed by the trustee.

• The trustee must act with diligence and expertise.
• Every act must be motivated by the exclusive interest of the bankruptcy proceeding.
• Awareness of pursuing private interests is decisive for the constitution of the crime.

The Court reiterated that it is not necessary to prove direct damage to creditors for the existence of the crime, which is a point of great practical relevance.

Conclusions

Judgment No. 33878 of 2023 represents an important step forward in protecting creditors' interests and combating illicit conduct by bankruptcy trustees. In a complex economic context like the current one, it is essential for professionals in the sector to adopt transparent conduct in line with current regulations. Jurisprudence continues to evolve to ensure that bankruptcy proceedings are managed with responsibility and integrity, thereby protecting the rights of all parties involved.