In recent days we have dealt extensively with the bankruptcy proceedings, focusing on the pre-bankruptcy procedure and its conclusion. But how can the court order be challenged if the pre-bankruptcy investigation concludes with a declaration of bankruptcy?
The legitimacy to appeal the bankruptcy
The right to challenge the bankruptcy sentence is recognized to the bankrupt and to anyone interested in doing so, with the sole exception of the one who requested the bankruptcy. An interest in proposing opposition to bankruptcy is recognized to those with whom bankruptcy produces effects. Among these creditors, who cannot initiate or continue individual executive actions and acquire pre-emption rights, who have acquired rights by virtue of acts that cannot be opposed to bankruptcy or of ineffective or revocable acts, and so on.
The spouse of the bankrupt subject may also be interested in proposing opposition to the bankruptcy, in relation to the property rights on which the bankruptcy may affect. It is debated, with prevalence in the negative sense, to admit that a moral interest is sufficient.
Where the appeal against the bankruptcy is proposed
Contrary to what happened in the past, the bankruptcy declaration is challenged not before the court, but before the Court of Appeal. The term of appeal corresponds to what is provided for the appeal with an appeal against any sentence. It will be 30 days from the date of notification of the sentence and for the other interested parties from the date of registration in the register of companies. In the absence of notification or registration in the business register, the long term is 6 months from the publication of the sentence.
What form the appeal should take
Different forms are adopted from those of the ordinary litigation procedure. The appeal is in fact proposed not with a summons addressed to the other party, but with a complaint, or with an appeal addressed to the judge.
What are the parts of the appeal
The parties to the appeal are the appellant, the one who requested the declaration of bankruptcy and the administrator.
The plaintiff will normally be bankrupt. However, anyone with an interest in the provision is entitled to challenge the provision. It could therefore also be a person who has not directly participated in the proceeding resulting in the declaration of bankruptcy.
The second part, or the one or those who have applied for bankruptcy, will or will presumably be the recurring creditor or creditors. It may also be the public prosecutor in the event that the initiative for the declaration of bankruptcy has been taken by him. The third part, the curator, will be the one who represents the interest of the collective creditors.
Legally, between the various interested parties (appellant, creditor or public prosecutor and trustee) a necessary joint agreement can be set up. Assuming that trial litigation can be established between the first and second grades and the grades of the subsequent grades, even the person declared bankrupt, if the appeal was proposed by another interested party, must be called to participate in the appeal proceedings. Any other interested party may also intervene, but always within the deadline set for the construction of the resistant parts.
Preliminary investigation and sentence Court of Appeal
As it happens during the pre-bankruptcy preliminary investigation, so also in the trial before the Court of Appeal, the Court can also automatically assume the means of proof that are necessary for the purposes of the decision.
Once the preliminary investigation has been carried out, the Court will proceed with a sentence, against which an appeal can be made to the Court of Cassation within thirty days of notification.
The bankruptcy sentence is thus provisionally enforceable and its effects are not valid until the resignation sentence has become final. In particular, the debtor’s dispossession does not cease even in the event of the revocation of the bankruptcy, until the sentence becomes definitive.
However, the appellate court also has the power to suspend the liquidation of assets, in whole or in part, and even temporarily, upon appeal. Moreover, only in the case in which the court arranges the provisional exercise of the company or grants the company for rent or on loan, can the prejudice to the preservation of the business activity be neutralized, which cannot obviate the suspension of the liquidation of the company. active, given the debtor’s continuing dispossession.