De fraudebestrijdende faillissementscurator

With the assignment of public duties to the bankruptcy trustee in the field of combating fraud, a potential tension seems to have arisen in the bankruptcy of legal entities. This dissertation examines, among other things, whether the trustee’s role in combating fraud is compatible with their traditional role of representing the collective interests of creditors, and whether the trustee, with the duties and powers granted to them, can actually contribute to combating bankruptcy fraud. In relation to the latter, it is examined, in the light of the criminal law principle that a suspect (the director of the bankrupt legal entity) is not required to cooperate in their own criminal conviction (also known as the right against self-incrimination), (i) whether the trustee in bankruptcy is allowed to compel information (statements or documents) from the director using coercive measures, (ii) whether the trustee may pass on this compelled information to investigative and prosecuting authorities, and (iii) whether this compelled information can serve as evidence of bankruptcy fraud in a criminal case against the suspect (the director of the bankrupt legal entity). Additionally, it is examined whether the assignment of the fraud-combating task to the trustee carries the risk of undermining both the effective resolution of the bankruptcy and the effective fight against bankruptcy fraud, as directors may refuse to cooperate with the trustee out of fear of criminal prosecution.

Dissertation: https://hdl.handle.net/11370/0248c3c3-9e0e-4dbd-bb7d-ae3e0ae94f92