Abstract

The work addresses the issue of protection of creditors in case their debtor is an owner of shares of a company limited by shares, in order to verify if it is possible to recognize for the creditors the power to take actions differing from or in addition to enforcement action against the lien on shares held by their debtor. In this perspective three questions will be analysed: 1) the possibility to avoid contributions of the debtor to the company's capital; 2) the problem of the limits of creditors' subrogation in the rights pertaining to the debtor as a shareholder; 3) the protection of creditors in respect of events reducing the value of assets of the company - therefore reducing the value of the debtor's stake - and hence may prejudice both the company's creditors and the shareholder's creditors. In this third case, it is suggested to recognize to the shareholder's creditors some powers and rights similar to those which pertain to company's creditors, even if under specific and different circumstances. Indeed, in the absence of particular rules, under the Italian legal system, it seems possible to grant adequate protection to creditors of a parent company. This can be achieved by considering the creditors of the parent company as entitled to directly react to events affecting the subsidiary company and its assets, in order to preserve the value of the controlling stake held by the parent company.