Il controllo giudiziario nelle società di capitali

This article offers a comprehensive analysis of judicial control over the management of capital companies under Article 2409 of the Italian Civil Code, examining its role within the broader system of corporate governance and internal controls. The study reconstructs the historical evolution of the remedy, from its origins in the Italian Commercial Code of 1882 to the reforms introduced by the Consolidated Financial Act, the 2003 corporate law reform, and the 2019 Insolvency and Crisis Code. Particular attention is devoted to the relationship between Article 2409 and the provisions governing listed companies, limited liability companies, partnerships limited by shares, and cooperative societies. The article investigates the standing requirements for bringing a petition before the court, the notion of “serious irregularities in management”, the interaction between judicial control and corporate bodies, and the procedural remedies available to the court. Special emphasis is placed on the reintroduction of judicial control in limited liability companies and on the coordination between Article 2409 and the modern framework of corporate monitoring and crisis prevention. The paper argues that judicial control continues to represent a fundamental safeguard within corporate law, operating as an extraordinary mechanism aimed at preventing harm to the company and ensuring the proper administration of corporate affairs. Keywords Judicial Control Corporate Governance Article 2409 Italian Civil Code Serious Management Irregularities Corporate Oversight Board of Directors Statutory Auditors Limited Liability Companies (S.r.l.) Joint-Stock Companies (S.p.A.) Corporate Crisis Prevention Oppure, in una versione più accademica e indicizzabile per riviste internazionali: Keywords: Judicial Control; Corporate Governance; Article 2409 ICC; Serious Irregularities in Management; Corporate Monitoring Systems; Directors’ Duties; Auditors’ Duties; Limited Liability Companies; Joint-Stock Companies; Corporate Law Enforcement. parole chiave Per il saggio "Il controllo giudiziario nelle società di capitali", suggerirei le seguenti parole chiave, coerenti con il contenuto e con gli standard delle riviste scientifiche giuridiche: Parole chiave: Controllo giudiziario Art. 2409 c.c. Gravi irregolarità gestionali Corporate governance Controlli societari Amministratori Organo di controllo Società per azioni Società a responsabilità limitata Tutela della società Se invece la rivista richiede parole chiave in inglese: Keywords: Judicial Control Article 2409 Italian Civil Code Serious Management Irregularities Corporate Governance Corporate Monitoring Directors Supervisory Bodies Joint-Stock Companies Limited Liability Companies Corporate Remedies Per una rivista di fascia A, più orientata al dibattito teorico-comparatistico, utilizzerei: Keywords: Judicial Control; Corporate Governance; Directors' Duties; Corporate Oversight; Serious Management Irregularities; Minority Shareholder Protection; Corporate Enforcement; Internal Controls; Limited Liability Companies; Joint-Stock Companies. 07_programma_comune_rete.pdf PDF mi fai abstract 04_società quotate_diritti.pdf PDF mi fai abstract? 1720-951X-12873-8.pdf PDF 05_doveri_e_responsabilita.pdf PDF abstract Abstract This article examines the duties and liabilities of directors and statutory auditors in Italian capital companies in light of the profound transformations introduced by corporate law reforms and the increasing complexity of modern corporate governance. Moving beyond the traditional framework of the 1942 Civil Code, which primarily conceived management and supervision through the lens of liability, the study analyses the progressive expansion of directors’ responsibilities and the growing relevance of organisational and governance duties. Particular attention is devoted to the exclusive managerial competence of directors in joint-stock companies, the distinctive governance structure of limited liability companies, the evolution of the standards of care and loyalty, the duty to act on an informed basis, and the significance of adequate organisational, administrative, and accounting arrangements. The article further explores the allocation of responsibilities between executive and non-executive directors, the limits of the solidarity principle, the concept of corporate damage, and the liability regime applicable to statutory auditors. The analysis highlights a broader trend towards strengthening accountability mechanisms and preventive governance tools, while also emphasizing the risks associated with the increasing exposure of directors and auditors to liability arising from both management and oversight activities. Keywords: Directors’ Duties, Directors’ Liability, Statutory Auditors, Corporate Governance, Duty of Care, Duty of Loyalty, Informed Decision-Making, Organisational Adequacy, Joint-Stock Companies, Limited Liability Companies. 12_controlli_ets.pdf PDF Abstract This article analyses the system of internal controls in Italian Third Sector Entities (ETS) under Legislative Decree No. 117/2017 (the Third Sector Code), highlighting how the legislature has largely modelled the governance and oversight framework of non-profit entities on the corporate law regime applicable to joint-stock companies. The study examines the rationale underlying the adoption of a supervisory body inspired by the statutory auditors’ board (collegio sindacale), the conditions triggering the mandatory establishment of control functions, and the relationship between management oversight and statutory auditing. Particular attention is devoted to the scope of the supervisory body’s duties, including compliance monitoring, oversight of organisational adequacy, and verification of the entity’s pursuit of civic, solidaristic, and social utility purposes. The article further investigates the requirements of independence and professionalism of controllers, their investigative powers, and the remedial mechanisms available in response to managerial irregularities, including judicial control and liability actions. The analysis argues that the effectiveness of the control system depends on the ability to reconcile traditional corporate governance techniques with the distinctive institutional objectives of Third Sector Entities, ensuring accountability not only towards members but also towards the broader community of stakeholders whose interests these organisations are designed to serve. Keywords: Third Sector Entities, Internal Controls, Corporate Governance, Supervisory Body, Statutory Auditors, Non-Profit Organisations, Organisational Adequacy, Accountability, Judicial Control, Stakeholder Protection. 02_amministratori_tribunale.pdf PDF abstract Abstract This article examines the innovative corporate governance rules introduced by Articles 120-bis and 120-quinquies of the Italian Insolvency and Crisis Code, focusing on the allocation of decision-making powers during corporate crisis and restructuring procedures. The study analyses the principle of the exclusive competence of directors to decide on access to insolvency and restructuring instruments, determine the content of restructuring proposals and plans, and promote corporate amendments necessary for the success of the restructuring process. Particular attention is devoted to the relationship between these provisions and the broader evolution of Italian corporate law, especially the duties imposed on directors under Article 2086 of the Civil Code and the emerging recognition of creditors’ interests as a priority concern in situations of financial distress. The article critically explores the resulting redistribution of powers between directors, shareholders, and courts, highlighting the progressive marginalisation of shareholders in restructuring decisions and the enhanced role of judicial intervention through the approval and implementation of corporate amendments. It argues that the new framework reflects the emergence of a distinct body of “corporate insolvency law”, aimed at ensuring the timely management of corporate crises and preventing opportunistic behaviour by shareholders that could jeopardise restructuring efforts. At the same time, the study questions the implications of these reforms for traditional principles of corporate autonomy, shareholder rights, and the allocation of corporate powers within business organisations. Keywords: Insolvency Law, Corporate Restructuring, Directors’ Powers, Article 120-bis CCII, Article 120-quinquies CCII, Corporate Governance, Shareholders’ Rights, Creditors’ Interests, Corporate Crisis, Business Judgment Rule.