Bankruptcy in extension: the instance cannot be proposed personally by the Curator without the attorney’s ministry

The application for bankruptcy to the extent to the members unlimited liability pursuant to art. 147, paragraphs 4 and 5, L.Fall., as personally proposed by the Curator, nullifies the declaratory judgment of bankruptcy, since the sanatoria provided for by art. 182, paragraph 2, c.p.c. which assumes that the document of incorporation in court was in any case drawn up by a lawyer.

In the present case, the judges of legality have had the opportunity to examine two questions: the first on the active legitimacy of the Administrator for the bankruptcy action under art. 147 paragraphs 4 and 5 L.F. without having recourse to the ministry  of a lawyer; and the second, if (and to what extent) the absence of such a requirement is attributable to the sanatoria provided for by art. 182, paragraph 2, c.p.c..

With reference to the first question, the Supreme Court found that «…omissis … In the absence of an express provision of the law on the necessity or not of the technical defence, it is necessary to consider the nature of the proceedings for the declaration of bankruptcy, as that in extension pursuant to art. 147, paragraph 4 L.Fall. makes express recall (by referring to the provisions contained in art. 15, 18 and 22 L.Fall)». In the present case, the Ermines describe the procedure cd. “prefallimentare” asCourt of First Instance of the Court of First Instance .[1]

Precisely for this characteristic, the applicability of the general rule referred to in art. 82, paragraph 3, of the Civil Code, according to which ‘Except in cases where the law provides otherwise, before the Court and the Court of Appeal the parties must be in court with the patronage of the prosecutor… omissis …».

The only exception to this assumption, according to the Court of Cassation, is to be found in the case of an appeal lodged by the same debtor, pursuant to art. 6 L .Fall., for the  purpose  of its own declaration of insolvency, even without formalities and without the mandatory ministry[2] of a lawyer, at least until the application conflicts with the intervention of entities with an interest in ruling out the bankruptcy, otherwise involving the conduct of a qualified adversarial, which could define the litigation nature of the proceedings.

With reference to the second question, the Supreme Court then reiterates the applicability of art. 182, comma 2 c.p.c. in the field of bankruptcy, since it is not exceptional rule, «… omissis … susceptible to extensive interpretation and analogue application».

However, the applicability of the rebate in so far as the amnesty can and must be limited to the only cases of nullityprovided, which presuppose the existence of acts drawn up with the ministry of a lawyer, While the case underexamination of the Supreme Court would identify a hypothesis – irrevocable non-existence of the power of attorney, since the procedural document was drawn up personally by the party, not authorized pursuant to art. 86 of the Italian Civil Code, and only later – beyond the expiration of the peremptory deadline for its completion with decadent effect – has been ex post ratified by the defender.

 

[1] In this sense, see also Cass. Civ. n.  20661/2019

[2] In this sense, see Cass. n. 20187/2017