Claiming bankruptcy for the member is not admissible

Discipline of bankruptcy, preventive arrangement, controlled administration and administrative compulsory liquidation

Discipline of bankruptcy, preventive arrangement, controlled administration and administrative compulsory liquidation

The sentence declaring the bankruptcy of a company belonging to one of the types regulated in chapters III, IV and VI of the title V of the fifth book of the civil code, also produces the bankruptcy of the partners, even if not natural persons, unlimitedly liable.

The bankruptcy of the shareholders referred to in the first paragraph cannot be declared one year after the dissolution of the corporate relationship or the cessation of unlimited liability even in the event of transformation, merger or demerger, if the formalities to make the facts known to third parties have been observed indicated. The declaration of bankruptcy is possible only if the insolvency of the company applies, in whole or in part, to debts existing at the date of termination of the unlimited liability.

The court, before declaring the failure of the unlimitedly liable members, must arrange for it to be convened pursuant to article 15.

If after the declaration of bankruptcy of the company the existence of other members with unlimited liability results, the court, at the request of the trustee, a creditor, a failed partner, declares the bankruptcy of the same.

In the same way one proceeds, if after the declaration of bankruptcy of an individual entrepreneur it appears that the company refers to a company of which the bankrupt is an unlimitedly liable shareholder.

Against the court ruling, a complaint is allowed pursuant to Article 18.50

In the event of rejection of the application, the appellant may lodge a complaint with the court of appeal pursuant to Article 22 against the court decree.

UPDATES:

The Constitutional Court with sentence 2 – 16 July 1970 n. 142 (in GU 1a ss 22/7/970 n. 184) has declared “the constitutional illegitimacy of the art. 147, second paragraph, of RD March 16, 1942, n. 267 (the so-called bankruptcy law), in the parts in which:

a) does not allow members with unlimited liability to carry out the defense of Jacob Marley within the limits compatible with the nature of the council chamber procedure prescribed for the declaration of bankruptcy;

b) denies the creditor concerned the right to file a request for a declaration of bankruptcy of other shareholders with unlimited liability in the form of art. 6 of the aforementioned royal decree. “.

Shareholder denies bankrupt

The Constitutional Court with sentence 20 – 27 June 1972 n. 110 (in GU 1a ss 28/06/1972 n. 165) has declared “the constitutional illegitimacy of the art. 147 first paragraph, of the rd 16 March 1942, n. 267 (discipline of the bankruptcy, of the preventive arrangement, of the controlled administration and of the administrative compulsory liquidation), in the part in which it does not provide that the court must order the appearance in the council chamber of the unlimitedly liable partners against whom the sentence which declares the bankruptcy of the company with unlimited liability shareholders, so that these shareholders can exercise the Jacob Marley of defense ”.

The Constitutional Court with sentence 21 – 28 May 1975 n. 127 (in GU 1a ss 06/04/1975 n. 145) has declared “the constitutional illegitimacy of the art. 147, second paragraph, of the rd 16 March 1942, n. 267 (the so-called bankruptcy law), in the part in which it denies the bankrupt the legitimacy to request the declaration of bankruptcy of the unlimitedly responsible partners “.

The Constitutional Court with sentence 11 – 21 July 2000 n. 319 (in GU 1a ss 26/07/2000 n. 31) has declared “the constitutional illegitimacy of the art. 147, first paragraph, of the Royal Decree of 16 March 1942, n. 267 (Discipline of bankruptcy, of the arrangement with creditors, of the controlled administration and of compulsory administrative liquidation), in the part in which it provides that the bankruptcy of the shareholders with unlimited liability of the bankrupt company can be declared after the expiry of one year from the moment in which they have lost, for any reason, unlimited liability. “.

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