The present study intends to investigate the issue of asset protection in the conduct of business activities, especially the internal credit structuring of a subject through the establishment of an endo-subjective segregation of assets, disconnected from the attribution of legal personality, creating a further limitation of liability of the entrepreneur that goes beyond the usual shareholders limited liability. The reason for the growth of the asset segregation technique, both in civil law and common law systems, is linked to the economical need of isolating pools of assets committed to specific purposes and protecting them from claims of creditors other than the functional creditors of the purpose, reducing the establishment and management costs related to the creation of a new corporate structure and, in a perspective of corporate finance - according to the results of the law and economics studies - the financing cost. As pointed out by Hansmann and Kraakman the assets partitioning, in the two different profiles of Affirmative and Defensive asset partitioning, represents an essential feature of organizational forms provided for the exercise of a business activity. But the phenomenon of asset partitioning is placed in a complex theoretical system, representing a transversal issue that affects not only the area of company law, but also fundamental concepts of private law as the debtor’s personal liability and the concept of legal person. For this reason, the starting point of the this analysis (Chapter One) is the study of the theoretical foundations of common and civil law systems related to essential concepts such as the notion and the different theories about patrimony, the debtor’s personal liability, and the concept of legal person and legal entity (in connection with the so-called autonomia patrimoniale perfetta), highlighting similarities or differences and exploring their development until today. After the analysis of these essential concepts, the study focuses (Chapter Two) on the use of asset partitioning in company law and, in particular, on the birth and the evolution of organizational forms arranged for the conduction of business activities in both systems. From the earliest forms of companies characterized by some form of assets partitioning and legal personality, to the last business forms, characterized by systems of endo-subjective asset segregation. The analysis about each organizational form, with particular attention to forms of companies characterized by the endo-subjective segregation, was conducted in a functional perspective, analyzing the presence or not of the legal personhood, the presence or not of the Affirmative and Defensive asset partitioning profiles, and the level of creditors protection that, in case of a further limitation of liability of the entrepreneur, assumes a crucial importance. The data collected, particularly in relation to three essential legal systems - France and Italy for the civil law area and the United States for the common law area - show that in the last decade, despite the path-dependence of each legal system, the use of the endo-subjective segregation technique has grown in several countries of the Western Legal Tradition area. Once observed differences and similarities between the new corporate structures, it was possible to show how the introduction of these new models of asset segregation produce identical problems in different jurisdictions, as the application of bankruptcy and tax law, generally related to the lack of legal personality. The introduction of similar new company forms discloses the convergence of civil and common law systems, even if based on different theoretical foundations. This convergence is essentially due to several factors such as the globalization of markets and economies, which strengthens the attempt to the unification of commercial and company law towards a new lex mercatoria and encourages states to put in place legislation able to attract foreign investment in a competition and forum shopping perspective, increasing the spontaneous circulation of models. From a theoretical point of view it has been possible to reach several conclusions. On one side, we note that in the context of the asset partitioning theory, the endo-subjective segregation (of series, PCCs and founds committed to a specific purpose) could lead to a peculiar configurations of Affirmative and Defensive asset partitioning: the production of a "Double Defensive asset partitioning" effect (a double shield for assets segregated into the internal cells of a company for both, specialized creditors of the cells or general creditors of the company), or a “Triple Defensive asset partitioning" only for Delaware series with different members; and a stronger Affirmative asset partitioning (considering beyond the general impossibility of personal shareholders’ creditors to reach company's assets, the further segregation of assets within each cell, that are committed only to the claims of specialized cell’s creditors), that could become “Double” for Delaware series with different members (series members’ personal creditors have no claims toward both, series assets and company assets). On the other side, in terms of regulation, it can be noticed at first that it seems essential that the further limitation of liability of a subject, obtained through an endo-subjective segregation of assets, is supported by appropriate forms of disclosure in order to protect creditors, who must be aware of the structure of the company in terms of liability, and by a more penetrating system to protect involuntary creditors, in respect of which seems proper the expansion of liability to all company’s assets. Moreover, for a greater diffusion of these new company structures a regulatory or courts intervention is necessary in both systems, to clarify and complete the current legislation, harmonizing it within the existing system, especially with the bankruptcy legislation, ensuring the efficiency and the compliance with their ratio, their essential nature of asset segregation and attribution of limited liability disjointed from the presence of legal personality, in order to preserve, also in case of dysfunction, the advantages of expanding financing channels and lowering the cost of debt capital as highlighted in the law and economics studies.

Separazione patrimoniale endosoggettiva e attività d’impresa: un’analisi comparatistica / Ventura, Livia. - (2013 Oct 30).

Separazione patrimoniale endosoggettiva e attività d’impresa: un’analisi comparatistica

VENTURA, LIVIA
30/10/2013

Abstract

The present study intends to investigate the issue of asset protection in the conduct of business activities, especially the internal credit structuring of a subject through the establishment of an endo-subjective segregation of assets, disconnected from the attribution of legal personality, creating a further limitation of liability of the entrepreneur that goes beyond the usual shareholders limited liability. The reason for the growth of the asset segregation technique, both in civil law and common law systems, is linked to the economical need of isolating pools of assets committed to specific purposes and protecting them from claims of creditors other than the functional creditors of the purpose, reducing the establishment and management costs related to the creation of a new corporate structure and, in a perspective of corporate finance - according to the results of the law and economics studies - the financing cost. As pointed out by Hansmann and Kraakman the assets partitioning, in the two different profiles of Affirmative and Defensive asset partitioning, represents an essential feature of organizational forms provided for the exercise of a business activity. But the phenomenon of asset partitioning is placed in a complex theoretical system, representing a transversal issue that affects not only the area of company law, but also fundamental concepts of private law as the debtor’s personal liability and the concept of legal person. For this reason, the starting point of the this analysis (Chapter One) is the study of the theoretical foundations of common and civil law systems related to essential concepts such as the notion and the different theories about patrimony, the debtor’s personal liability, and the concept of legal person and legal entity (in connection with the so-called autonomia patrimoniale perfetta), highlighting similarities or differences and exploring their development until today. After the analysis of these essential concepts, the study focuses (Chapter Two) on the use of asset partitioning in company law and, in particular, on the birth and the evolution of organizational forms arranged for the conduction of business activities in both systems. From the earliest forms of companies characterized by some form of assets partitioning and legal personality, to the last business forms, characterized by systems of endo-subjective asset segregation. The analysis about each organizational form, with particular attention to forms of companies characterized by the endo-subjective segregation, was conducted in a functional perspective, analyzing the presence or not of the legal personhood, the presence or not of the Affirmative and Defensive asset partitioning profiles, and the level of creditors protection that, in case of a further limitation of liability of the entrepreneur, assumes a crucial importance. The data collected, particularly in relation to three essential legal systems - France and Italy for the civil law area and the United States for the common law area - show that in the last decade, despite the path-dependence of each legal system, the use of the endo-subjective segregation technique has grown in several countries of the Western Legal Tradition area. Once observed differences and similarities between the new corporate structures, it was possible to show how the introduction of these new models of asset segregation produce identical problems in different jurisdictions, as the application of bankruptcy and tax law, generally related to the lack of legal personality. The introduction of similar new company forms discloses the convergence of civil and common law systems, even if based on different theoretical foundations. This convergence is essentially due to several factors such as the globalization of markets and economies, which strengthens the attempt to the unification of commercial and company law towards a new lex mercatoria and encourages states to put in place legislation able to attract foreign investment in a competition and forum shopping perspective, increasing the spontaneous circulation of models. From a theoretical point of view it has been possible to reach several conclusions. On one side, we note that in the context of the asset partitioning theory, the endo-subjective segregation (of series, PCCs and founds committed to a specific purpose) could lead to a peculiar configurations of Affirmative and Defensive asset partitioning: the production of a "Double Defensive asset partitioning" effect (a double shield for assets segregated into the internal cells of a company for both, specialized creditors of the cells or general creditors of the company), or a “Triple Defensive asset partitioning" only for Delaware series with different members; and a stronger Affirmative asset partitioning (considering beyond the general impossibility of personal shareholders’ creditors to reach company's assets, the further segregation of assets within each cell, that are committed only to the claims of specialized cell’s creditors), that could become “Double” for Delaware series with different members (series members’ personal creditors have no claims toward both, series assets and company assets). On the other side, in terms of regulation, it can be noticed at first that it seems essential that the further limitation of liability of a subject, obtained through an endo-subjective segregation of assets, is supported by appropriate forms of disclosure in order to protect creditors, who must be aware of the structure of the company in terms of liability, and by a more penetrating system to protect involuntary creditors, in respect of which seems proper the expansion of liability to all company’s assets. Moreover, for a greater diffusion of these new company structures a regulatory or courts intervention is necessary in both systems, to clarify and complete the current legislation, harmonizing it within the existing system, especially with the bankruptcy legislation, ensuring the efficiency and the compliance with their ratio, their essential nature of asset segregation and attribution of limited liability disjointed from the presence of legal personality, in order to preserve, also in case of dysfunction, the advantages of expanding financing channels and lowering the cost of debt capital as highlighted in the law and economics studies.
30-ott-2013
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11573/918304
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