Appointed by the court, the curator is the professional – as a public official – who is entrusted with the provisional operation of the company in a very particular and delicate phase.
Tasks of the bankruptcy trustee
Among the many tasks assigned to the bankruptcy trustee , it will be up to him those related to the need to prepare the liquidation plan, the formation of the debt status, the communications to the creditors and the holders of the assets of the bankrupt.
Not only: according to art. 33 lf, the trustee is the one who must present to the delegated judge, within 60 days of the declaration of bankruptcy , a detailed report in which he will explain the causes and circumstances of the same, the diligence and responsibility of the bankrupt or other subjects in the exercise of the company, and how much it can affect for civil and criminal purposes.
The bankruptcy trustee must prepare a summary report of the activities performed every six months and attach a temporary management account, thus allowing the creditors’ committee to make observations and monitor the management process.
Finally, it will be up to the trustee the inventory of the bankrupt’s assets and the affixing of the seals on the same assets.
The responsibility of the curator
The legislator provides that the curator must personally perform the functions of his office , although this does not imply, however, that he cannot delegate specific operations to others (but only with the authorization of the delegated judge).
The curator, while remaining solely responsible for his own work, may also choose to be assisted by paid technicians and third parties, for the performance of some of his functions.
Moreover, in relation to the possibility of being assisted by other subjects, such as technicians (or the same bankrupt), the legislator provides that the curator only needs the authorization of the creditors’ committee for the extraordinary administration deeds, which may be – for example – credit reductions or mortgage cancellations.
Appointment of the curator
The trustee is appointed by the court and, based on the provisions of art. 29 lf, the curator must, within the two days following the participation of his appointment, send his acceptance to the delegated judge. If the trustee does not comply with this obligation, the court, in the council chamber, urgently appoints another trustee.
However, the “previous” curator has the opportunity to keep his role even after two days, provided that the acceptance is communicated to the appointed judge before the new trustee is appointed.
Instead it is the previous art. 28 lf to tell us who can perform the functions of curator , among lawyers, chartered accountants, accountants and accountants, also in the form of associate studies or professional companies and without prejudice, at the time of acceptance of the assignment, the designation of the natural person responsible for the procedure.
Individuals who have performed administration, management and control functions in joint stock companies may also become insolvency administrators, provided they have demonstrated adequate entrepreneurial skills, and provided a declaration of bankruptcy has not been made against them.
They cannot instead become spouse curators , relatives and the like up to the fourth degree of the bankrupt, the creditors of this and those who have contributed to generating the failure of the company within the two years prior to the declaration of bankruptcy, and further anyone who is in a condition of conflict of interest with bankruptcy.
Revocation of the curator
The trustee’s revocation may be at any time by the court, at the proposal of the appointed judge or at the request of the creditors’ committee, in the event that the trustee is deemed to have defaulted in his official duties. The revocation decree must be justified, after hearing the administrator and the creditors’ committee.
A relatively recent amendment to the bankruptcy law also allowed the creditors gathered to examine the liabilities to request that the administrator be replaced, stating the reasons.
It is difficult to summarize what could be the reasons related to the revocation of the curator . We can however remember how the principal can be traced back to the occurrence of a house of incapacity, to subjective incompatibility (think of the curator who is a relative of the bankrupt), to the non-observance of one’s duties or even to non-compliance with other duties, which however it is assessed as sufficient to be able to revoke the assignment.
Remuneration of the trustee
Article. 39 lf establishes that the compensation of the trustee , and the expenses due to him, can be liquidated at the request of the trustee, and are established by decree of the court on the basis of the report of the appointed judge.
The settlement of the remuneration will take place after the approval of the statement or after the execution of the arrangement. However, it is still possible for the court to grant, on request of the trustee, advances on the compensation, for justified reasons.
Complaint against provisions of the trustee
Against the trustee’s deeds of administration, both the bankrupt and all interested parties may lodge a complaint with the delegated judge for violation of the law.
The claim against the trustee’s omissive or commissive acts must be brought within 8 days of being informed of the deed or, in the event of omission, of the expiry of the term indicated in the warning to provide for it. The delegated judge, after hearing the parties, will decide by reasoned decree. In the event that the accepted claim refers to the curator’s omissive behavior, the curator will have to execute it.