Lo stato d'insolvenza della società in liquidazione

The paper aims to overturn the thesis that a “static” criteria is to be followed in order to declare bankruptcy of undertakings under liquidation. Meaning that the detection of the insolvency requirement (art. 5 of Italian Bankruptcy Law) shall be solely based on the evaluation of the gap between assets and liabilities, as long as a company placed in run-off management shall not be deemed as a going concern anymore. The theory was mainly developed by the case-law of the Italian Supreme Court since 1996, as well as it has been supported by distinguished scholars. The author addresses his critical arguments both in terms of systematical and technical legal aspects