Commentary on Judgment No. 39680 of 2024: Preventive Seizures and Protection of Third Creditors
The judgment No. 39680 of September 10, 2024, represents an important reference point for understanding the dynamics related to preventive seizures and the protection of third creditors. In particular, the Court examined the issue of verifying the credit of third parties in relation to preventive seizures ordered before the amendment of Article 12-sexies of Decree Law No. 306 of 1992, which took place with Article 31 of Law No. 161 of 2017.
The Regulatory and Jurisprudential Context
The aforementioned legislative amendment extended the provisions of Title IV of Legislative Decree No. 159 of 2011 to confiscation for disproportion and to the preventive seizure functional to it. However, the Court established that the verification of third-party credit must occur according to the principle of good faith, excluding the application of the anti-mafia regulations concerning the protection of third parties and their relationships with bankruptcy procedures.
- Good faith as a cornerstone principle in the verification of credits.
- Exclusion of anti-mafia regulations for seizures ordered before the amendment.
- Practical implications for third creditors and seizure procedures.
The Holding of the Judgment
Protection of third creditors - Preventive seizures ordered before the amendment of Article 12-sexies of Decree Law No. 306 of 1992 by Article 31 of Law No. 161 of 2017 - Principle of good faith - Operability - Title IV of Legislative Decree No. 159 of 2011 - Applicability - Exclusion. The verification of third-party credit in relation to preventive seizures aimed at confiscation for disproportion ordered before the amendment of Article 12-sexies, Decree Law of June 8, 1992, No. 306, converted, with amendments, by Law of August 7, 1992, No. 356, by Article 31 of Law of October 17, 2017, No. 161, which extended the provisions of Title IV of Legislative Decree of September 6, 2011, No. 159 to confiscation for disproportion and to the preventive seizure functional to it, must be carried out according to the principle of good faith, without the aforementioned anti-mafia regulations concerning the protection of third parties and their relationships with bankruptcy procedures being applicable.
Conclusions
Judgment No. 39680 of 2024 provides a clear interpretation of the current legislation, highlighting the importance of the principle of good faith in preventive seizure proceedings. This decision not only offers useful guidance to industry professionals but also contributes to ensuring greater protection of the rights of third creditors, reaffirming that their position must be assessed carefully and without prejudices arising from regulations prior to recent legislative changes. It is therefore essential that the parties involved in such proceedings are aware of these developments for a proper management of their legal positions.
