In our legal system, the initiative for the ‘opening of bankruptcy proceedings on the assets of the debtor (bankruptcy) is left is to’ private initiative, that all ‘public initiative. But who are the subjects entitled to request the debtor’s bankruptcy? We try to make some clarifications on the matter, revealing all there is to know about the legitimacy to demand bankruptcy.
The private initiative is certainly the most widely used when it comes to requesting the opening of an insolvency procedure on the debtor’s assets.
In it, a decisive role is certainly attributed to the creditors, entitled to request the bankruptcy of their debtor even if the credit has not expired. The insolvency of the debtor determines in fact the forfeiture of the benefit of the term and therefore the immediate collectability of their credit.
Note how the quality of creditor that is required by the art. 6 of the Bankruptcy Law, it does not presuppose the judicial verification of the credit nor is it necessary for the applicant to have a title, even if only provisionally enforceable, since it is sufficient that when declaring the bankruptcy, the existence of the credit can be ascertained incidentally, even in the presence of disputes by the debtor, for the exclusive purpose of verifying the legitimacy of the instant creditor.
Furthermore, in private initiative, legitimacy is also attributed to the debtor. It remains to be clarified – from reading the tenor of Article 6 of the law, it is not clearly understood – whether the debtor has a mere faculty or a real obligation to request his own bankruptcy.
Moreover, we must remember how art. 217, paragraph 1, foresees as a criminal offense (simple bankruptcy) the behavior of that debtor who “aggravated his failure by refraining from requesting the declaration of his own bankruptcy”. Within these limits, a real obligation of the debtor to request his own bankruptcy can be configured.
The public initiative
Clarified that the private initiative to open the bankruptcy proceedings can be up to the creditor or the debtor himself, it remains to understand how the public initiative can be expressed in practice.
First of all, one can remember how the legitimacy of the bankruptcy request rests with the public prosecutor if the insolvency results from a criminal proceeding, and therefore in the function of the prosecution, according to the art. 216 ss., With regard to which the declaration of bankruptcy assumes importance as a constitutive element of the crime.
In addition to that, the new version of the art. 7 also provides for the public prosecutor’s initiative when the insolvency results from the report by the judge who detected it during a civil proceeding. The report may come from a civil judge who has detected the insolvency of a commercial entrepreneur in a monitoring procedure in which an injunction is issued which is provisionally enforceable, for a non-negligible amount, or in a proceeding for attachment, in a proceeding executive.
The suppression of the office initiative was therefore balanced by the possibility of reporting to the public ministry, which may come from the same bankruptcy court, “also – reads the Report – in cases of renunciation of the appeal for declaration of bankruptcy by the instant creditors “, Or in those that previously represent the hypotheses typical of the more or less frequent office initiative.
Even in the event of road accidents in a procedure aimed at regulating the crisis through an agreement with the creditors, it is envisaged that the bankruptcy should be declared “at the request of the creditor or at the request of the public prosecutor”. This is the case in the event of a declaration of inadmissibility of the proposed arrangement with creditors, or even in the event of the inadmissibility of the proposed arrangement with creditors, or in the event of the completion of acts of fraud or unauthorized acts, and finally of refusal of approval.
Where the bankruptcy procedure opens
The jurisdiction to declare bankruptcy is the court of the place where the company has its main office. In this case, it is a matter of functional competence, which is provided not only for the pronouncement, but also for the procedure which opens with it, and which will be carried out through the verification of the debtor’s debtor’s situation and the administration and liquidation of its assets, and it is therefore rational that it should be carried out where most of the relationships that are part of the company are concentrated.
It is therefore important to understand where the company is headquartered. A concept that generally coincides with that of the registered office, as shown in the register of companies, which can be presumed to be assumed to be the actual one. However, it may also happen that the registered office is located in a specific place, but that in reality it is actually located elsewhere. In this case, or in the event of divergence between the registered office and the actual site, the competence must be determined with regard to the latter.
In its turn, with actual headquarters we mean the one in which the administrative and managerial activity takes place , while it does not take into consideration the place where the plants are located and where the productive activity is carried out. The importance of the administrative office must not be surprising, given that the curator will take over the bankruptcy administration of the assets and will have to perform his duties in the place where until then the entrepreneur provided for his administration, or in the place where it is assumed that the accounting records are present, the correspondence is entertained, and so on.
Of course, it can also happen that the company has several secondary offices , which are not relevant, however, for the purpose of determining the competence. However, if several independent entrepreneurial activities are carried out by the same subject, each having its own administrative headquarters, it is no longer possible to identify a main office of the company. In this case the court of the place where each of the autonomous business activities is exercised is competent to declare bankruptcy, the prevention principle being applied, so that the declaration of bankruptcy by one of the competent courts precludes the declaration of bankruptcy by part of the others.
Finally, it is recalled that the transfer of the seat affects the competence as long as it is effective and timely. In short, if as we have seen a few lines ago for the determination of the competence it is necessary to make reference to the actual seat and not to the registered office, it is clear that the transfer of the seat can affect the competence only if it is effective. As regards the timeliness, reference will be made to the fact that the transfer of the registered office in the year prior to the exercise of the bankruptcy declaration initiative will not be relevant for the purposes of jurisdiction. Therefore, it will only detect if the transfer of the registered office took place at least one year before the moment when the bankruptcy declaration was initiated.