Mk&Partners

Mk&Partners

domenica 29 maggio 2011

The unlawful behaviour of the bankrupted business man implies that the discharge proceeding can’t be allowed on his behalf


The discharge procedure is a benefit ricognized by Italian law in favour of business men who acted with fairness and decency in the management of their own personal businesses but, due to misfortune or general crisis, got bankrupted.
The discharge procedure allows the business man to close up the bankruptcy proceeding even though it wasn't passible to pay all debts and get free anyway from the debts included in the bankruptcy mass, which, as previously told, was impossible to be entirely paid.
In few words, those debts that wasn’t possible to satisfy with funds obtained from the winding up sales of the bankrupted business man properties are anywho settled off by an order of the Court House which deletes all the remained debts and allows the business man to the fresh start.
The business men may comply with the discharge within a year from the definitive closing down of the bankruptcy procedure and only if either during the business management and during the whole bankruptcy proceeding the business man itself showed to deserve this special treat.
The requirements to be admitted to the discharge are provided by the law (art. 142 L.F. - bankruptcy act).
Pursuant to a recently issued decision of the Supreme Court (Sent. 11279/2011), the art. 142 L.F., from among the requirements provided to obtain the order of discharge in behalf of the bankrupted business man, requires that the bankrupted himself didn’t delay the bankruptcy proceeding.
To delay and impede the proceeding implies an unlawful behaviour which infringes and violates the principles of the fair duration of processes consecrated by the art. 6 of Human Rights Act and art. 111 of Italian Constitution.
In particoular, from among the actions and behaviours which delays or impedes the bankruptcy procedure, must be included every action or behaviour which really and actually impedes the proceeding, causing itself an unfair duration of the bankruptcy procedure, including in this list the legal suits started by the bankrupted business man which he from the beginning knows groundless, misused and used just as an excuse to delay the procedure.

Pursuant to the decision of the Supreme Court under discussion, from among the unlawful actions and behaviours which delays or impedes the bankruptcy procedure, must be even included all the deed of assignment of his own properties ordered by the business man when he already was aware of the irreversibile and extremely serious breakdown of this own business crisis.

Pursual to Italian law, in fact, when the business man is aware of the fact that the economic crisis of his business can’t be solved, he can’t put in action deeds of assignment of his own properties because from this very moment he is acknowledged of the fact that all his properties must be in the near future sold out to pay his creditors so he can’t decrease the consistence of his property.

The business man who is aware of the his own insolvency ought to lodge sue before to Court House to demand the self bankruptcy and doesn’t have to make deeds of assignment or in any different way delay the bankruptcy procedure since the trustee of the bankruptcy, appointed by the Court House only after the bankruptcy is ordered, must for this reason logde the legal actions needed to void faudulent conveyance which often last many years and influence the duration’s length of the procedure.

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