Continues the analysis of PBG on bankruptcy (06/06/2012)


 

In recent months, two different research trend of the law fal-limentare showed a critical capacity in its application. Research sponsored by the PBG with the University of Cassino indicates, in fact, that the creditors' committee is formed in 47% of cases, the next, promoted by Assonime, confirms the data, indicating a higher proportion intent-to 50 %.

Until 2006 the existence of the CoC inside bankruptcy procedures was considered irrelevant. The organ had only an advisory role and his opinions were admissible in accordance with the principle of silence / approval: in practice were not even cast. The entry into force of the reform of the creditors' committee, however, assumes a central value in the management of the procedure. Articles 40 and 41 of the Act identify the functions and powers of the CoC as supervisory powers and authorization, up to the possibility of revocation Curator same. The institution of bankruptcy, until 2006, provided that the creditor, after obtaining the failure of his debtor, was, in fact, been taken away from any possibility of intervention. The course of the liquidation procedure was exclusively in the hands of the Trustee and the Bankruptcy Judge. With the 2006 reform, the legislature recognizes the rights of creditors and gives new powers to the body. Unfortunately, alongside this laudable intention, inserts a set of responsibilities, incorporating the figure of the component of the CoC, the sen-si art. 2407 of the Civil Code, that-the mayors of corporations, obtaining a reverse result: to discourage, in fact, the participation

creditors' management proce-dures bankruptcy.
It is not enough provision for a compensation for committee members to encourage their participation. We have also noted a lack of information with companies that they know very little scono the existence of normal but. The consequences of this situation are a further obstacle to speditez-tion of management failure.

Delays in the formation of the CoC, which in 40% of cases still can occur, lengthen the time of approval of the Settlement Program and the start of the liquidation process.

In the absence of the CoC twenty-Gono its functions assumed by the Bankruptcy Judge, with a substantial revival of the old rite and timetables in decision-fluenzate by overworked judges.

In cases of successful formation of the committee, its composition is predominantly delegated to a group of suppliers, followed by professionals and workers. The presence of banks is almost completely gone.

The CoC, in short, loses to qual-ity, back to being a superstructure in the process of management of the procedure, you lose the ability to exert control and directed the actions of the Trustee, that the legislature had desired.

This situation is shown by the in-surveys carried out, is likely to never be resolved, it is necessary an intervention legislation for the abolition of the profiles of responsibility of the members of the CoC in order to facilitate their participation in the management of the insolvency proceedings .

Giovanni Colmayer

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