IL CONTROVERSO INQUADRAMENTO DELL'OPPOSIZIONE ALLO STATO PASSIVO FALLIMENTARE
Creators: name: CARLETTI, FEDERICO
Publisher: name: Universit� degli Studi di Milano
Year: 2020

description: The purpose of the study conducted was to identify the rules governing the procedure for opposing the bankruptcy statement of liabilities, expressly provided for in Articles 98-99 of the bankruptcy law, as a possible remedy against the decree of enforceability of the statement of liabilities issued by the delegated judge. The issue under consideration was of particular interest because, first of all, it made it possible to analyse the profound changes that the proceedings in question have undergone since the issue of R. D. 267/1942, followed by the reform carried out with D.lgs 5/2006 corrected with D.lgs 169/2007 and culminating in the Dlgs 14/2019. Secondly, it allowed a critical evaluation of the troubled legislative process mentioned, which did not always comply with the intention of creating a complete set of rules suitable to speed up the process. Therefore, the beginning of the dissertation is constituted by a comparison between the discipline of the verification of credits as outlined by the legislator of 1942 and the modifications introduced in the two-year period 2006-2007. First of all, the first phase of the judge's activity was examined, which, in its original structure, on the border between the administrative and the jurisdictional nature, was dominated by the summary nature and by the inquisitorial principle, and was linked to a singular breadth of powers granted to the judge in order to simplify the procedure. The second phase, on the other hand, unlike the first, was subject to the discipline of the ordinary rite of cognition, although introduced with an appeal, instructed by the same delegated judge, a rite in which the parties had to respect the endo-procedural terms provided for by art. 183 ss c.p.c.. At that time, the nature of the appeal was recognised as having devolutive effect: in other words, the provisions of Article 345 c.p.c. had to be applied. With the novel, the legislator wanted to assign to the delegated judge and the receiver a profoundly different role from the past, outlining the procedure of verification of claims as a procedure that is of a contentious jurisdictional nature, albeit with summary knowledge, and that is based on the principle of the application and the exception, in which the receiver assumes the role of party and the judge pronounces according to the rules and in compliance with the rules of evidence. The procedure relating to "appeals", on the other hand, has been maintained as a judgment on the merits with full knowledge of the facts, even though it is characterised by a single rite for the treatment of the three different means of appeal. Moreover, the discipline of this rite is no longer automatically classifiable within the scope of the norms that mark the ordinary process of cognition, since, with the reform, the references to the code of ordinary rite no longer exist. Having defined the essential features of the reforms mentioned, the second and third chapters focus on the search for the legal nature of the opposition procedure. And so, first of all, we have adhered to the conviction that the remedy de quo can be counted within the category of the means of appeal, not being able to consider it as a simple continuation, with full knowledge, of the summary phase of verification. This classification is not without consequences on the level of discipline, which has made it necessary to study the devolving effect and the prohibition of ius novorum, and then to proceed to a comparison with the model described in Articles. 339 ss. C.p.c., which concludes with the impossibility of overlapping the two remedies. Specifically, the different attitudes of the devolving phenomenon, of the exceptions, of the evidence that can be deduced, of the prohibition of reformatio in peius and, above all, of the possibility of lodging incidental appeals were analysed. Having identified the characteristics of the opposition as a model of appeal that cannot be equated with the judgment on appeal, the third chapter devoted itself to the controversial nature of the remedy in question. And so, anticipating the conclusion relating to the section under examination, we have now adhered to the orientation that recognizes the rite of opposition as a chamber judgment, specifically, the outcome of a detailed comparison with the procedural model governed by Articles. 737 c.p.c. which involved the introductory phase of the judgement, the subsequent phase of treatment as well as the decisional phase, it has been reached to believe that the chamber of commerce is not to be found only and exclusively in the formal aspects, that is, in the form of the introductory act (appeal) and in that of the conclusive measure (decree). In fact, an essential trait of the chamber rite is its simplicity and slimness, freed from rigorous temporal scans and rigid applications of the rules of evidence. Therefore, it was considered that these peculiarities are actually present in the proceedings under Article 99 of the Bankruptcy Law, subject to certain exceptions. The latter consist first of all in the way in which the introductory phase of the judgement is marked, which is studded with rigid foreclosures, apparently in open contrast with the typical deformalization of the chamber procedure; to this is added the express non-recognition of powers of investigation by the judge, who (as a result of the corrective decree of 2007) is no longer explicitly recognized the possibility of "assuming information". However, these last elements do not call into question the landing reached, as they are a necessary adaptation to allow the procedure in the chamber of the council the contentious protection of the rights. In other words, the legislator wanted to ensure the quantum of minimum guarantees of due process necessary to shape the chamber proceedings for the purpose of judicial protection of subjective rights in litigation. Such a conclusion was opportune to understand whether the meagre discipline of the rite, as enucleated by art. 99 of the bankruptcy law, can or cannot be integrated through a reference to the norms inherent to the ordinary rite of knowledge which, as has been said, is no longer recalled by the regulations. Through an analysis of the jurisprudence, it will be considered that the chamber model de quo is special, because only the rules contained in the Royal Decree 2671942 are applicable to it, and it is precisely this recognised speciality that will be considered necessary to act as a yardstick whenever there is doubt about the possible reference to a rule belonging to the rite referred to in Articles. 163 ss c.p.c. Well, the uncertainties that still overshadow both the discipline and the framework of the opposition to the bankruptcy proceedings are extremely topical if only we consider the karst trend of the jurisprudence that sometimes denies and sometimes affirms the imputability of the rite to the ordinary one. Whether these uncertainties have been dispelled by the legislator of the reform with a clarifying intervention is subject to review in the fourth and final chapter. In other words, as mentioned above, the D.lgs 14/2019, in the declared intention to enhance the profiles accelerators of the procedure, intervened on the discipline under Article 99 of the bankruptcy law. translating it into the new Article 207 CCII and innovating it in several respects, first of all the recognized admissibility of incidental (timely and) late appeals. However, the legislator did not take the opportunity to resolve some problematic issues that affect mainly the investigation phase, which has remained unchanged from the regime currently in force. Specifically, the greatest concerns are raised on the one hand by some contradictory choices made by the legislature, especially in the perspective of accelerating the rite, and on the other hand by the failure to take an express position on the powers of investigation concretely available to the bankruptcy judge, remaining the subject of free interpretation, as evidenced by still conflicting jurisprudential guidelines, a symptom of a serious vulnus to legal certainty. What we want to emphasize is that the chamber nature of the rite has not been sufficiently valued, well having been able to the legislator of the reform exalt this framework, while respecting the rules of evidence, through the enhancement of the activism of the judge in the use of investigative powers on materials already acquired. This would have allowed the rite de quo to be placed in a more epistemic perspective of the trial, therefore more inclined to the pursuit of material truth, in line with a trend that is now widespread in both internal and supranational courts.