Court of Francavilla Fontana - Brindisi, 02/01/2011
E 'attachable share Corporate
Article. 671 Code of Civil Procedure, referred to in the art. 2905 cc, it allows the attachment of the debtor's assets "to the extent that the law allows the seizure" and equity participation, as it potentially has a positive economic value, may be heading in the abstract of the assets of each partner in terms of art. 2740 cc16.2.2011,
COURT OF DETACHMENT BRINDISISEZIONE FRANCAVILLA FONTANAORDINANZAn. 902/S/2010 RGCIl Judge read the appeal pursuant to art. 671 cpc proposed by V. against P. to require the attachment of the portion pertaining to him of the "G." snc, alleging the existence of a claim of € 16,821.00 (under the Decree No 279/2008 declared provisionally enforceable injunction art. 648 cpc pending opposition by order of 17.12.2009 No court in the 34/2009 RGC) and the well-founded fear of losing the guarantee of the same due to the sale of that shareholding to a third party, noted the presidential decree of 12.11.2010 transmission of the original hinged to the Court of Brindisi, read memory Constitution presented by the defendant, who has argued for the inadmissibility of the appeal prior to the absence of the object of legal concern, in seizing on a partnership, then arguing at length in support of the contention that the conditions required by the standard ritual for the Invocation care grant, which called for the dismissal of charges on the merits with victory, after hearing the parties, examine the documents, held jurisdiction under Articles. 669-ter, 669-and 678 quaterdecies Code, read the notes authorized only by the appellant filed on 29.12.2010 and the additional documentation required by order of the hearing on 12/01/2011 and filed 01/25/2011,
NOTES
At the outset, the interlocutory application is deemed admissible, contrary to the defense pleaded by the defendant. As you know, art. 671 Code of Civil Procedure, referred to in the art. 2905 cc, it allows the attachment of the debtor's assets "to the extent that the law allows the seizure and the holding company, as potentially has a positive economic value, may be heading in the abstract of the assets of each partner in terms of art. 2740 cc, from a corner three perspectives: 1. it states as the foundation of the right to collect corporate profits, on which the art easily. 2270, paragraph 1 cc (rule also applies to the SNC in the light of the general call in art. 2293 cc, because compatible with the structure of all societies of people) admits the possibility for creditors to enforce the member's particular his rights on the profits accruing to the debtor and then to proceed with the seizure and attachment to them. However, in this case the appellant did not raise the existence of a distribution of profits or distribution, 2. based participation and the right, in the event of dissolution of the relationship as opposed to the individual shareholder (the causes of which are governed by Articles. 2284 et seq. cc) or society as a whole, for a share of the positive result of the liquidation . On these sums (or substantially similar to expected future claims), provided the art. 2270, paragraph 1 cc enables the creditor of the particular member to take "protective measures", but while the company may simply be the same lender, said sums being insufficient in the case of other goods, at any time to require the liquidation of the debtor's share of social (which must take place within 3 months), general partnership in which the "..." instead of this option is ruled by art. 2305 cc and what better guarantee of the entity, which would undoubtedly shaken by the ability of creditors of a shareholder to break down in such cases, the social structure. In fact, even this conservative caution was required, because the business profile and articles of association (Article 4) shows that the natural expiration of the company has been set at 31.12.2050 and therefore would not be logically feasible to wait until then, nor would be possible for the old man explains the opposition to the extension of the company resulting in wound up pursuant to art. 2307 cc 3. which intangible property rights which belong within the various corporate governance, participation is then (see paragraph on Cass. Civ. January 30, 1997, n. 934 and Cass. Civ. November 10, 1992, No. 12087), also in itself an asset value. And 'in fact been clear for some time that the shares in both companies' capital (effective, or not represented by shares) of companies that people (ideal), contractual positions are "targets", subject as such to be negotiated being equipped with an independent "exchange value" which can be recognized as "legal interests" (Cass. December 12, 1986, No. 7409, 23 January 1997, No 697; January 30, 1997, No 934, June 4, 1999, No 5494, May 26, 2000, No 6957). It 'just on this last aspect that seem to have concentrated the requests of the applicant creditor, and it is therefore necessary to consider the complex pignorabilità of that law, since it must be expected to achieve as well sottoponibilità abstract of the same attachment to the view' assimilation brought about by art. 671 cpc On this point, the traditional view in doctrine tended to dell'impignorabilità solution, arguing that participation in a partnership is characterized by a kind of intuitus personae, to the extent that Article. 2252 cc requires the unanimous consent of all members, unless otherwise agreed, to change the social contract and thus to change the team in the constitutive act with subjective deliberate disposal to others of a "quota". However, recently the Court of Cassation (see Cass. Civ., 7 November 2002 No 15605) has admitted the seizure of the shares in the event that the memorandum provides for the transferability of prejudice to the need to preserve any terms Pre-emption also contained in the social contract. In essence, in the opinion of the judges of legitimacy, the fact itself from the outset to have provided the transferability of shares, suggesting that the intuitus personae in the individual case, steps into the background, so we can proceed to foreclosure. In another examination of this Court, the charter of the defendant company art. 9 seems to have been structured in this direction, for the right of first refusal and the consent of the other shareholders in case of transfer, but since they are only 2 members in total, including Palmisano and the other partner has a minority participation is absolutely (5%), so much so that in relation to this position has already been a change in corporate as an act of the 01/29/2008 instead of B. D. came, in fact, the transferability of the quota is to be considered free, which makes the same abstract attachable and thus amenable to attachment. Moreover, precisely because the members are only 2 in fact could not even operate the above preemptive right, otherwise the company would have been at risk of dissolution to be less governed by the plurality. 2272 No 4 ccTutto this place, in order to establish a prima facie case, and with reference to the exception related to the slope of Judgement No RGC 34/2009 of opposition to the injunction declared provisionally enforceable, it should be stressed that the procedure for attachment to the degree of certainty that the claim is deemed to have driven the investigation must be assessed consistently Type summary assumes that the protective order, in fact, it is settled case-law, it is essential that credit, but may not meet the criteria of liquidity and enforceability, both current and likely exists (see eg. on this point, Cass. Civ., January 28, 1994, n. 864). In this case, the arguments and allegations put forward by the applicant to support this view probable existence and relevance, since in general, pursuant to art. 648 cpc exequatur the court behind the granting of provisional enforceability of the order opposite, although brief, taking into account, a prognosis, and the reasons for opposition (Which in this case was not considered based on the written test or for a speedy solution) is that there is adequate proof of the facts constituting the right claimed by the opposite, according to the canons of the ordinary proceedings of merito.Con periculum in regards to the notice, the objective evidence adduced by the applicant (Chamber certificate certifying its participation to 95% in the CNS with only one other member, the cessation of all directorships from 31.01.2008, the capacity of the company's assets because the act of buying of equipment for the € 70,805.00 30/01/2007; report negative attachment securities made September 13, 2010 against the Father, no doubt recalcitrant to honor Enforcement Orders imposed upon him) and the behavior assumed by the debtor himself, which in appearance and answer voluntarily admitted to not having other movable or immovable property and therefore the state holding company integrates its only source of livelihood, are serious indications, precise and consistent art. 2729 cc to find that there is a real fear of losing the guarantee of the Old Capital (also in light of the foregoing in order to substantially free transferability of shares to third parties) and therefore this precautionary measure to grant the guarantee patrimoniale.Non must also do so, as well as requested by the applicant in the notes authorized filed on 29.12.2010, the appointment of a custodian of the share subject to precautionary measure, primarily because this is not provided by the rules of ritual (the art. 676 cpc concerns only the fact that seizure was also not only for managerial and conservative), in secundis why this requirement should not strictly speaking not even be necessary in carrying out the seizure in terms of art. 675 Code of Civil Procedure and the shape of the seizure under Article securities. 678 Code of Civil Procedure or comparable applications, in accordance with the most advanced doctrine, the rules governing the seizure of shares governed by the today srl. As a 2471 cc in the presence of intangible movable property not susceptible of possession, it should also be excluded that may be relevant, for purchases after the seizure itself, the last piece of art. 2913 cc, and then affixing each subsequent purchase of the bond may not still be opposed to creditore.Infine, despite the acceptance will not be necessary to set a deadline of Article. 669-g cpc for the introduction of the proceedings, in the circumstances, the trial proceeding that seeks the sentence and the subsequent conversion of the executive order in foreclosure in accordance with art. CCP 686 is already pending before this office and this is what No 34/2009 in which RGC No injunction 279/2008 for which shall have been declared provisionally enforceable. The Registry could not noticing that since the use of pre-trial was originally hinged to the Court of Brindisi and only later was sent to this section by presidential decree art. 83-b of the Code of Civil Procedure 12/11/2010, so the material will disporsi meeting of this sub-process to the regulation of principale.La costs of these proceedings is specifically reserved for the outcome of the substantive proceedings already pendente.PQMIl Court, pronouncing definitively on interlocutory application, hereby orders: Due to the Articles. 671, 669-quaterdecies, welcomes the appeal during the proceedings and, for the effect authorizing the seizure of the shareholding of ... .... Snc up to the credit of € 16,821.00 in the manner specified in the recitals and within a deadline of 30 days of notification of this order; court costs to the final and sent to the Registry to treat the inclusion of this issue n. 902/S/2010 RGC within that bearing No RGC 34/2009, whose next hearing is set for communicating with 3.02.2011.Si parti.Francavilla Fontana, 01.02.2011 Judge (Dr. Giuseppe Marseglia)
Extract from: http://www.diritto- in-rete.com/sentenza.asp? id = 1022
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