In a recent in-depth analysis we have had the opportunity to understand who has the legitimacy to propose a request to open the bankruptcy proceedings , and which court has jurisdiction.
Let us now try to integrate that theme by understanding what the fundamental steps of the procedure are, and how the pre-bankruptcy investigation is composed.
How to propose bankruptcy application
The request for bankruptcy must be proposed in the form of the appeal , according to the procedures established by the legislator. The court will provide in collegial composition and as a result of a chamber proceeding .
With regard to the main steps of the pre-bankruptcy preliminary investigation , we recall how the summoning of the debtor, the creditors and the public prosecutor who presented the appeal for the declaration of bankruptcy, before the court in collegiate composition, or before the judge appointed to the pre-bankruptcy investigation .
The hearing is set within 5 days of the filing of the appeal, and between the date of the notification of the appeal and of the decree setting the hearing, and the date of the hearing, a deadline of at least 15 days must elapse, except for the faculty of abbreviation with motivated decree of the president of the court, in the case in which the particular reasons of urgency exist.
In addition to this time reference, it should be taken into account that the rhythms of the pre-bankruptcy preliminary investigation are then marked by the forecast of a period of not less than 7 days before the hearing (also in the case of particular reasons of urgency) for the presentation of briefs and for the filing of documents and technical reports . This is a faculty exercisable by the debtor for his right to defense, but also by the plaintiff, for the burden of proving the existence of the conditions for the declaration of bankruptcy, against him.
In the previous system, on the other hand, the dominant principle was that related to the inquisitorial spirit: in fact, the court would have to proceed to convoke a debtor, and in the same way as an office, it would have had to provide the necessary evidence to verify the existence or otherwise of the assumptions of bankruptcy. The tendency to use the instrument of recourse for the declaration of bankruptcy , to be understood as a potentially more rapid and effective means of collecting debts , had moreover favored the adoption and consolidation of practices aimed at curbing the phenomenon of the instrumental use of instance of bankruptcy. In short, it was frequently requested that the creditor be obliged to proceed with the tasks related to the summoning of the debtor , notifying him of the appeal and the decree setting the hearing, and the same creditor was required to document the existence of the conditions for the declaration of bankruptcy , and sometimes even to produce a negative attachment report .
We also remind you that with the reform it is envisaged that the court, in addition to ordering the filing by the debtor of an updated balance sheet, income statement and financial position, and the balance sheets for the last three financial years, may also request any urgent information (think of the if the court perceives the risk of consolidation of prejudicial acts). However, at the hearing of the parties the judge provides for the admission and the accomplishment of instructive means requested by the parties or by the office. The appellant must therefore take responsibility for providing the court with probative support aimed at preventing the assumption of evidence and the request for bankruptcy is not dismissed too hastily.
The preliminary requests in the opening of the bankruptcy
Having said this, consider how the preliminary requests must concern all the relevant aspects of the decision, from that of the nature of the business to that of insolvency, passing through the analysis of unpaid debts, while the burden of proving the size of the company is not charged to the appellant.
From the few lines we have summarized above, it should be quite clear that following the reform the legislator wanted to give the preliminary investigation a wide-ranging , with the possibility of foreseeing the possibility of adopting precautionary or conservative measures of the heritage or firm. In the new system, however, the judge is precluded from adopting the provisions of jurisdiction, including precautionary measures, and the request for a part is therefore required, in which the reasons for the precautionary need and the proposed means of investigation must be stated, without prejudice to the faculty of the judge to obtain official evidence.
Limitations on the debtor’s power of disposal
The aforementioned measures may consist of limitations on the debtor’s power of disposal, but also of limitations on the exercise of creditors’ powers, such as the prohibition of following up enforcement actions , purchasing pre-emption rights or completing other acts of self – defense . Nor can it be excluded, in cases that the court considers more serious, the appointment of a judicial administrator or an auxiliary with powers of control over the administration of the assets and the exercise of the company.
The precautionary measures that are thus issued by the court have limited efficacy for the duration of the proceedings, and are confirmed or revoked by the sentence declaring the bankruptcy or by the decree which, on the other hand, rejects the request.
Having clarified what we have expressed in the previous points, let us now observe how the precautionary measures that will be taken here can reduce, but not eliminate, the urgency to proceed on the bankruptcy petitions . Apart from the potential risk of the expiration of the term for the subjecting to failure of the ceased entrepreneur, it can in fact be a significant risk of the consolidation of acts prejudicial to creditors due to the expiry of the suspected legal period.
The decision not to complete the safeguarding procedure with a starting date of the suspected legal period, not from the date of the bankruptcy, but from that of the request if accepted, has the foreseeable consequence of the possibility of accelerating the pre-bankruptcy investigations and, consequently, also a compression of the terms that were required to settle the crisis out of court, or propose regulation with a preventive arrangement.