The situation changed with the reform of l.f
In the past, could fail only on the entrepreneurs and commercial companies, and were therefore excluded small entrepreneurs and agricultural entrepreneursThis discipline had created not a few difficulties especially for the identification of the category of small entrepreneurs (art. due to the elasticity of the concepts expressed by that article.
that provides (thanks to the correction made to them by the art.
) the parameters on which you can be declared the bankruptcy of the entrepreneur (or a company). What is striking about the new discipline is the disappearance of any reference to the small business owner, and then you can say that if you exceed even only one of the parameters provided for by art. you may fail, if, on the contrary, none of these parameters is exceeded, it will not be possible to obtain the bankruptcy of the entrepreneur, or small business. This has finally put an end to the uncertainty that characterized the previous discipline, provided, however, that is not can be the failure of the agricultural entrepreneur and the other organizations and enterprises which, according to special laws may not be subject to these procedures that you understand dall the same art. one, regarding the persons who may be subject to bankruptcy, expressly refers to the 'entrepreneurs exercising a business activity, except public bodies'. It is evident, therefore, that only who is the entrepreneur who carries on a business' can fail, and the play certainly the entrepreneurs and commercial companies and can carry out small entrepreneurs. As a result, entrepreneurs who are 'not doing business' will certainly be excluded from the bankruptcy and not only other farmers. We see then, in the light of the reform, what are the parameters provided for by art. according to which also those who 'carries on a business activity', can't fail. It should be noted that art. one provides for a reversal of the burden of proof borne by the entrepreneur which has been the subject of a request failure is in fact him, and not the applicant or the pm, need to try that you have not exceeded any of the three requirements set out in article. Let the state of insolvency is in fact true that to fail is not enough that you exceed the parameters set out in art. In the presence of conditions seen previously then you can ask for the bankruptcy, but it is said that you get. Indeed, it can happen that advanced ritual request failure according to the rules of articles one and five of the bankruptcy act, we discover at appraisal liquidation, and the amount of debts due and not paid is less than thirty thousand euro (art. It is, in substance, a third assumption necessary to obtain the failure which you add to the other two already seen before, and as the amounts provided for by art. also the amount of thirty thousand euro is updated every three years by a decree of the Minister of justice, on the basis of the average of the variations of the ISTAT indexes of consumer prices for families of workers and employees that occurred in the reference period.
f, but that verse is also in a state of insolvency
Let's see, now, until it can be declared a failure As you see it is important that in the year declared bankruptcy, and this means that in the year must be filed at the court in the judgment. It is also true, however, that the bankruptcy law provides for an exception to this rule. We refer to the hypothesis foreseen by art. paragraphs four and five where the court of appeal welcomes the complaint against the decree of the court which had dismissed the bankruptcy petition. Here it is expressly said (paragraph) that the terms of the articles there and Eleven are counted with reference to the decree of the court of appeal', in other words to know if you are still in time to declare the bankruptcy of the entrepreneur who has ceased activity or is the deceased, you will need to see if the decree of the court was pronounced in the year from the cancellation from the register of companies or from the death of the entrepreneur, and not going to check to see if the subsequent judgment of the court declaring the bankruptcy has been filed for those periods of time. it was reformed by the d.
, resolving a dispute that had seen the protagonists on the one hand the Court of Cassation and the Constitutional Court.
If you want to retrace the terms of the debate in case law, just click here. The bankruptcy law does not deal with the hypothesis of failure of the contractor who have not registered in the register of companies and of society, in fact it could be argued that in this case, such companies will fail without the limits of time, and this would build a kind of sanction resulting from the failure to make an entry to the registry. It is also true, however, that this conclusion would be in conflict with the the guidelines that emerged from the case law of the Constitutional Court in relation to the old text of art, which inspired the legislator in the formulation of the new article there seems, in conclusion, the more correct to assume that the failure of businesses or companies not registered may be asked within one year from when these subjects have led to the knowledge of third parties with suitable means for the cessation of the business (see Cass. twenty-eight, no.). Let us consider, finally, two topics related to the time of the bankruptcy declaration, and that is the failure of the contractor deceased (art.) and of the death of the bankrupt during the bankruptcy proceedings. On the failure of the entrepreneur (physical person) is deceased and is necessary for an observation to article Eleven refers to the discipline of art. and from this we should infer that the failure of the entrepreneur, the deceased may be declared within one year from cancellation of the company from the the register of companies, provided that the insolvency was manifested prior to the cancellation or within the next year seems to be more correct, however, believe that the terms of reference for the declaration of bankruptcy must report the date of the death of the entrepreneur, rather than at the date of cancellation from the register of companies (implicitly in this sense, Cass. twenty-one Eleven no. Rome, fifteen there). Claudio Mellone Graduated in law at Federico II University. In the first manual of the Italian media of civil procedure.
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