Il ruolo del commissario giudiziale nell’era del “fallimento del contrattualismo concorsuale”

The role of judicial commissioner in the context of “Concordato preventivo” has changed dramatically in the last few years in the light of the increase of fraud cases in bankruptcy procedures. Despite the introduction by the Italian Legislator of the “Concordato preventivo in bianco o con riserva” pursuant to Article 161 of Italian Bankruptcy Law with the aim to facilitate a negotiated solution to the crisis of an enterprise, the empirical data shows a fraudulent use of “Concordato” by debtors who empirically use this instrument with the aim to delay the declaration of bankruptcy and the liquidation of the company rather then find an agreed solution to the crisis with creditors. In this context of failure of “contractualist approach” it is interesting to deepen the role of the commissioner whose functions have evolved from mere auxiliary of the court to a real organ of the procedure with high levels of duty of supervision and control of the action of the debtors.