Commentary on Judgment No. 3060 of 2024: The Limited Partner and the Crime of Removal of Seized Assets

Judgment No. 3060 of October 30, 2024, by the Court of Cassation serves as an important reference point for understanding the legal responsibilities of limited partners in a limited partnership (s.a.s.) concerning seized assets. It asserts that the transfer of a seized asset by a limited partner, appointed as the custodian of the asset, constitutes the crime provided for in Article 388, fifth paragraph, of the Penal Code.

The Case and the Court's Decision

The case at hand involved a limited partner, P. C., who, as custodian, had transferred ownership of a company asset under seizure to himself. The Court rejected the appeal and confirmed that such conduct constitutes a crime, considering that the transfer of the asset is a dispositive act that affects the timing of the enforcement procedure and can prejudice the interests of the creditor.

Limited partner of an s.a.s. appointed custodian of the seized company asset - Transfer of the asset to himself - Integration of the crime - Existence - Reasons. The conduct of a limited partner of an s.a.s. who transfers ownership of a seized company asset entrusted to his custody to himself constitutes the crime referred to in Article 388, fifth paragraph, of the Penal Code, as it is a dispositive act that affects the timing of the enforcement procedure and is potentially harmful to the creditor's interests, without the agent's responsibility for the company's obligations being relevant, which, although unlimited and joint, operates only subsidiarily.

Legal Implications and Regulatory References

This ruling draws attention to fundamental aspects of criminal and commercial law, particularly regarding the responsibilities of limited partners and the rights of creditors. The relevant regulations include:

  • Article 388 of the Penal Code: governs the crimes of removal or damage to assets subject to seizure.
  • Article 2304 of the Civil Code: regulates the responsibility of partners in limited partnerships.

The Court clarified that the responsibility for the company's obligations of limited partners, although unlimited and joint, arises only subsidiarily. Therefore, the transfer of seized assets is considered an unlawful and punishable act, regardless of the partner's position concerning the company's obligations.

Conclusions

Judgment No. 3060 of 2024 represents an important affirmation of the protection of creditors' rights and legality in the management of corporate assets. It clarifies that limited partners cannot use the company's assets for personal purposes, especially when such assets are already subject to seizure. This principle not only protects the interests of creditors but also strengthens trust in the legal system, promoting more ethical and responsible business practices.

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