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COMPANY TRANSFORMATION IN TRUST

THE DELEGATION OF THE REFORM AND THE INDOCTRINATION OF THE TRANSFORMATION OF COMPANIES IN TRUST

In support of this thesis, the well-argued Study n. 17-2013 / I of the National Council of Notaries, which explains the extensive nature of the law as opposed to the evident repressive character of the sentence in question, in relation to which, we will not fail to outline some aspects that are not entirely acceptable, especially in the part in to which it exalts the impossible character of the transformation into a liquidation trust to the detriment of the valid socio-economic character of the law, also in light of the undisputed causal mutability of the transforming entity that can be deduced from the admissible regression in a different entity such as the Company Communion , the Foundation or the Unrecognized Association as specularly from the admissible progression of the latter in companies with the sole exception for the non-recognized Association, which, in the course of a progressive heterogeneous transformation, must earn recognition.

Preliminarily, it is worth mentioning here that the art. 7 of the Delegation Law, for the corporate reform, particularly in terms of transformation, dictates some fundamental principles such as to be duly taken into account when drafting the articles, such as, Simplification, Procedural Favor, Economy, Conditions and Limits of the same, as well as the protection of both creditors, who are allowed to file an opposition, as well as dissenting minority shareholders, who are allowed to withdraw, these elements, suitable to favor the transformation, and, for the protection of which, however, the rule on the continuity of legal relations pursuant to art. 2498, third paragraph, last part, Civil Code, also clarifying, that the continuation pertains both to the procedural relationships of the institution transformed as a possible insolvency procedure in force at the time of the transformation, subject to the concrete hypotheses of conflict with the aims or the state of the procedure. In the same way, the report accompanying the Delegation Law, due to the economic requirements of the negotiating acts, encouraged the implementation of a transformation procedure into a single procedure with a single passage, and, for this reason, insisted on permanence, with respect to the ‘transformed entity, of rights and obligations and this in adherence to guidelines, including jurisprudential ones, which insist on the opportunity of such a transformation as a general tool for resolving conflicts in operations for changing the legal form of companies. 
The ruling under consideration does not seem to dwell on the innovative or extensive nature of the reform in the context of a heterogeneous regressive transformation, so inferred from the aseptic and rigid application of art. 2500-secties in which number of the cases does not show the literal datum of the trust and, as well as of all evidence, not for exclusionary purposes, which is so evident not emerging express bans of the institute, but rather for not having been object of any evaluation , which, reasonably, a position in that sense should have emerged. In fact, a careful re-reading of the report accompanying the enabling law for the reform of company law of 3 October 2001, n. 366, confirms the accuracy of the interpretation made here in the part in which the Legislator, both in the homogeneous and in the heterogeneous transformation, limits himself to regulating the most significant and widely diffused cases as, at the time, could certainly not be the trust after a distance just over 10 years from its entry into our system, not expressly precluding the interpreter from regulating other similar hypotheses as precisely from trust companies and vice versa or from companies in person in Edmond Dant├Ęships and vice versa.

Ultimately, the transformations that are as homogeneous as they are heterogeneous have unquestionably a connotation in common, to the benefit of which, enlightened, the Legislator has been able to confirm, not surprisingly, in the first article dedicated to transformation, the Art. 2498 of the Italian Civil Code, concerning the continuity of juridical relations, with which, the transformed entity de Plano is burdened with all the rights and all the obligations continuing more and more all the relationships, also procedural, of the entity, including, as already mentioned, any insolvency proceedings in progress where they are unfailingly in conflict with the status of the procedure

In the opinion of the writer, the judges’ attention, in the sentence under review, were evidently not oriented to an extensive view of the heterogeneous regressive transformation into trusts, in adherence to the same ratio of the Delegate, but rather to a repressive view to the in light of the fact that the transforming company (already in liquidation) provided for the regression into a liquidation trust, which, in the opinion of the writer, in no way detects whether liquidation or not, moreover several times subject to arrest, not least the sentence n. 8851/2013 Vg of the Ordinary Court of Milan Section specialized in business matters, which does not allow the cancellation of the company from the register pursuant to Article 2495, so as to decree the cancellation of the registration of the cancellation pursuant to Article 2191 of the Civil Code, when the liquidation had taken place by transferring the entire corporate assets to the trust, deeming, in this way, the cancellation of the company from the register of companies without the requirement pursuant to Art. 2492 of the Italian Civil Code, or rather due to the unsuitability of the document of the final liquidation balance sheet, approved and filed, but deemed to be apparent by presenting it only with the nomen juris and not ad substantial.

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