At the end of the pre-bankruptcy investigation, the court can declare bankruptcy by sentence, or reject the appeal for the declaration of bankruptcy by decree. Moreover, the pre-bankruptcy preliminary investigation can also be closed in a third way, through a filing declaration, or with a provision that declares its incompetence.

 

Withdrawal of the appeal

The filing decree (statistically, the prevailing outcome of the closure of the pre-bankruptcy investigation) is issued, for example, when the recurring creditor has already obtained full or partial satisfaction of his claim, or is convinced not to insist, and thus withdraws the appeal for the declaration of bankruptcy.

Therefore, having withdrawn the appeal, the tribunal will no longer be able to proceed officially to declare bankruptcy, and will not be able to do anything else other than to address signaling to the public prosecutor, so that it takes the initiative to request the bankruptcy. He can do this if the preliminary investigation has already been carried out or otherwise the insolvency and the quality of the debtor of a fallible person will result. In other cases, the withdrawal of the appeal for declaration of bankruptcy precludes the completion of the pre-bankruptcy investigation. This is nothing more than the acquisition of the elements necessary for reporting to the public prosecutor.

 

Declaration of incompetence

Declaration of incompetence

As we have seen, another outcome is linked to the declaration of incompetence by a specific court order. Before going down to the merit exam, in fact, the judge must verify his own competence, on the part’s exceptions or even ex officio in the case of functional competence.

While therefore in the ordinary litigation judgment following the declaration of incompetence (and in the case in which the decision on jurisdiction is not challenged) it is up to the party to summarize the proceedings before the judge declared competent, in the proceedings for a declaration of bankruptcy it is the court declared competent. to remain invested with the procedure by the transmission of the documents by the court which declared itself incompetent.

 

Decree of rejection

Decree of rejection

Among the other “ways” of leaving the preliminary investigation, there is also the rejection decree, which the court issues in the event that it does not consider the conditions for the declaration to exist. This is a provision that is not likely to become a res judicata and that is not an impediment to the proposition of a new appeal by the creditor if it deems it appropriate and convenient.

Once the power to declare bankruptcy ex officio, as per the previous regulatory framework, the court must therefore reject the appeal even in the event that the appellant does not prove his right to act, and therefore – traditionally – when the appellant does not he can prove his credentials.

 

Bankruptcy declaration

Bankruptcy declaration

If instead in which the court considers the application well-founded, at the end of its pre-bankruptcy investigation will proceed to issue a judgment declaring the bankruptcy. This is a complex provision, which contains a provision (the decision of bankruptcy) which is likely to become a res judicata and a series of ordination rulings, which have the purpose of regulating the conduct of the settlement procedure (ie, the appointment of the delegated judge and the trustee in bankruptcy, the fixing of the meeting to verify the passive state, etc.).

In this line of merit, we highlight how, considering that the effects of the bankruptcy are produced in an undetermined number of subjects, it must not only notify the judgment declaring bankruptcy against the bankrupt debtor, and communicated to the public prosecutor, the applicant and the trustee, but it is also subject to a particular form of advertising, the registration in the business register of the place where the procedure was opened and, where different, of the place where the entrepreneur has his registered office.

If the bankruptcy also includes real estate or registered movable property, the decision of bankruptcy in the public registers must also be noted.

 

Jurisdiction of the declaration of bankruptcy

Jurisdiction of the declaration of bankruptcy

If, as in the last paragraph, the pre-bankruptcy investigation closes with a bankruptcy sentence, and with a decision on the merit that contains an implicit (or express) declaration of its jurisdiction by the court , the sentence can be challenged only with a complaint to the Court of Appeal, if along with the ruling on jurisdiction the one on the merits is also challenged.

Finally, we point out how a positive conflict can come about in terms of competence when more than one court declares the failure of the same subject. The most frequent case is that of the declaration of bankruptcy of a company as an entrepreneur and as an unlimitedly liable partner of a company that has been contextually or previously declared bankrupt by another court. In relation to the need to safeguard the unity of the insolvency procedure and to avoid the coexistence of several insolvency procedures, in this case, it will be necessary to envisage the continuation of the procedure before the competent court which ruled first. In the event that a competence problem arises, that is, where the judge subsequently seized is able to challenge the jurisdiction of the court that ruled first, he will have to request the regulation for his own jurisdiction.

 

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