La tutela dei diritti del terzo nella discordia tra prevarica-zione dell’interesse pubblico ed efficacia della trascrizione ipotecaria su beni immobili oggetto di acquisizione gratui-ta al patrimonio comunale

Abstract

With this contribution, we bring to the expert reader's attention the atavistic debate, which has affected doctrine and jurisprudence, between the protection of the public interest and the protection of the private interest, in an attempt to find - in the most disparate ways - the right and necessary balance.

In the case that we will address, we find ourselves faced with the protection of the public interest in the acquisition of an abusive property for the municipal heritage with a predominantly sanctioning purpose that clashes, in fact, with the interest of the private individual who claims a right of credit to be satisfied precisely on that property acquired for the municipal heritage.

Although in the granite orientation of jurisprudence the above-mentioned problem is resolved with a clear favor for the protection of the public interest, prevailing over everything, it is also true that the Court of Cassation in United Sections with the order in question has faced the same problem in another and more profound perspective: in the balancing of public and private interests that characterize our legal system, the interest of the private individual would be completely swept away from the legal world to make room only for the protection of the public interest underlying the acquisition of the assets. How, then, does this legal interpretation of the phenomenon just described relate to the European and international protection of the interests underlying the subjective legal position of the private creditor?

In this factual, jurisprudential and regulatory context, the interlocutory order in question has been inserted, which has raised the issue to the Constitutional Court in a reading and in a vision that is completely different, innovative and never before considered by law.