19012 - General Procedure Law, Employment and Insolvency Procedure Law

Learning outcomes

Learning outcomes

At the end of the course, students should be able to: 1. outline and critique the fundamental principles of the Italian trial (including civil, penal and amministrative proceedings), with reference to the labour proceedings and to the bankruptcy procedure; 2. shows adequate knowledge of the Italian procedural system, not only regarding the process structure, but also passing through an extensive discussion about constitutional and general principles.

Course contents

A) GENERAL PROCEDURE LAW

1. General principles of the trial

The judicial system -Judicial activity - Independence and impartiality of Judges - Truth and due process - The Constitutional guaranty of trial - The civil proceedings - Alternative methods of dispute resolution - Hearings in chambers - The criminal proceedings - The administrative proceedings -Interim relief - Enforcement of a judgment.

2. The filing of the claim

The civil action - Action of first instance requiring adjudication of substantive rights - Complaint - Procedures of enforcement - Administrative hearing and trial - Criminal trial.

3. Defence

Systems for conducting a trial - The cooperation between parties and lawyers -The adversarial procedure – Defenses in civil lawsuit, criminal and administrativeproceedings -Time - limits to the proceedings - Non preventive summary judgments - The grounds of judements.

4. The outcome of proceedings

The solution of the case: style and effects of judicial decisions - The preparation of the case at first instance - Type of judgments - The meaning of res judicata.

5. Law of evidence

The rules and legal principles that govern the proof of facts in a legal proceeding - The burden of proof - The most common form of evidence.

B) LABOUR TRIAL

The Labour Court - Disputes concerning the rights or duties under an employment agreement or under the terms concerning the state of employment - The service of pleadings - The plaintiff and the defendant appearing in court .

C) BANKRUPTCY PROCEEDINGS

Filing a petition (voluntary or involuntary) to declare a business or corporate debtor bankrupt - The duties of the trustee in bankruptcy - The process of liquidation - Debt restructuring practices.

Readings/Bibliography

RECOMMENDED TEXTBOOKS

The teaching materials consist of the recommended textbooks and slides (ppt and/or pdf files) used in class and seminars by the teacher. Slides are available on Faculty website. It’s implied that slides are not to be used as substitute of textbooks and they are only helpful to improve knowledge.

A) GENERAL PROCEDURE LAW

G.F. RICCI, Principi di diritto processuale generale, Giappichelli, Torino, 6° ed., 2015. The study is limited to the following chapters:

Chapt. I: §§ 1-4; 6-15; 21-24;

Chapt. II: §§ 1-14, 17-19;

Chapt. III: §§ 1-5; 8-12; 14-18;

Chapt. IV – sez. I: §§ 1, 5, 6; – sez. II: §§ 1-16;

Chapt. VI: §§ 1-20.

Total number of pages: 324

B) LABOUR TRIAL

P. BIAVATI, Argomenti di diritto processuale civile, Bononia University Press, 4th ed., 2018 (chapter 4 only, par. 69- 73). Free updating available on www.bubonline.com.

Total number of pages: 39

C) BANKRUPTCY PROCEEDINGS

E. FRASCAROLI SANTI, Il diritto fallimentare e delle procedure concorsuali, Cedam, Padua, 2° ed., 2016. The study is limited to the following chapters:

Chapt. II – Sct. I: §§ 5, 6; – Sct. III: §§ 1, 2, 3, 4, 4.1, 4.2, 5;

Chapt. IV – Sct. I: §§ 1, 2, 3, 4; – Sct. II: §§ 1, 2, 3, 3.1, 4, 5, 6;

Chapt. V – Sct. I: § 1; – Sct. II: §§ 1, 3, 5, 6, 7; – Sct. III: § 2; – Sct. IV: §§ 1, 2, 2.2, 4, 5, 5.1;

Chapt. VII: §§ 1, 1.1, 4, 5, 6;

Chapt. VIII – Sct. I: §§ 1, 2, 3, 5; – Sct. II: §§ 1, 1.1, 4, 6, 7, 9, 9.1, 9.2;

Chapt. X – Sct. I: §§ 3, 4, 5, 6;

Chapt. XI – Sct. I: §§ 1, 3;

Chapt. XIV – Sct. III: §§ 1, 2, 3;

Chapt. XV: §§ 1, 1.1, 2, 4, 5, 5.1, 6;

Chapt. XVII – Sct. I: §§ 1, 3, 5 [lett. A), B), C), D), E) are not included], 6, 7, 7.1, 7.2, 8 [lett. A) e B) are not included], 9, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7; – Sct. II: §§1, 2, 3, 4, 5, 5.1, 6, 7, 8, 9;

Chapt. XVIII: §§ 2, 2.2, 3, 3.1, 3.2, 4, 4.1, 4.3, 5, 6.

Total number of pages: 169

Entirely number of pages: 484

Since, starting from August 14th 2020, the reform of the corporate crisis and insolvency regulations will come into force, it is suggested that the volume be read, as an in-depth analysis and always in the parts relating to the topics of the course:

S. DELLA ROCCA – F. GRIECO, Il codice della crisi d’impresa e dell’insolvenza. Primo commento al d. lgs. n. 14/2019, Cedam, Padova, 2019.

Updated digital teaching material (slides powered in ppt or pdf) shown during the lectures, is also available via username and password at AMS Campus - AlmaDL - University of Bologna (only for attenders).

Teaching methods

The course will be composed of lectures given by professor Brunella Brunelli (charged of the course) and seminars related to Bankruptcy proceedings given by assistant professors. Lectures and seminars will be carried out with ppt or pdf files help.

The course will be highly interactive. Theoretical issues will be confronted with practical cases in order to allow the students to understand and verify the complex mechanisms that govern the Italian proceedings.

Course attendance is not compulsory, but it is very much encouraged. The fundamental nature of the course relies upon student participation as an essential method for learning. Course are given into Italian language.

Teaching materials for regular attenders (slides, documents, bibliographical references) will be made available through the online Platform Iol.unibo.it.

Attendance will be recorded by signing the relevant attendance sheet (see Assessment methods).

Since the beginning of the course, students who are interested to attendance lectures and seminars are invited to enroll to the “teacher/studens” list of distribution brunella.brunelli.dirittoprocessualegenerale_2019/2020. In that case they will be enabled to get foregoing teacher’s materials and receive any information about the course.

To enroll to the list students shall go to https://www.dsa.unibo.it and search the abovementioned list. Password will be provided during the course.

Only attending students enrolled as explained above will be enabled to get teaching materials on Alma DL on line.

Thesis.

Frequency is preferential criteria for the assignment of the thesis in the discipline: the argument will be chosen after a meeting with professor Brunella Brunelli.

It’s not required a minimum grade on the exam, but it’s required that the student demonstrates deep interest in the subject.

The topic is chosen after an interview with the student, according to his propensities, within the limits of the topics that have not already been assigned.

Assessment methods

The final exam aims to evaluate the achievement of the educational objectives:

- knowledge of the proceedings (civil, criminal and administrative) and the key moments of their development;

- knowledge of the main features of the burden of proof;

- knowledge of the fundamental principles of labour law and its proceedings;

- knowledge of insolvency and bankruptcy proceedings.

The final examination will take place exclusively in oral form. It can be taken only after passed exams of Private law (Institutions of Private Law) and Constitutional law.

The oral exam has an average duration of 15-20 minutes and consists of a series of questions (usually at least 3) aimed at ascertaining the theoretical knowledge of the student on the topics related to the main objectives of the course held in class and seminars, as well as his ability to reason and his property of language. Particularly evaluated will be the ability of the student to know how to move within the normative sources in order to be able to draw from them useful information that will allow him to illustrate the aspects of the discipline of the various institutions. The student's achievement of an organic vision of the topics dealt with in class, together with their critical use, as well as the demonstration of possession of an expressive mastery and specific technical language will be evaluated with marks of excellence. The mostly mechanical and / or mnemonic knowledge of the subject, the ability to synthesize and not articulate analysis and / or a correct language, but not always appropriate, will lead to discrete evaluations; training gaps and / or inappropriate language - albeit in a context of minimal knowledge of the exam material - will lead to grades that will not exceed sufficiency. Training gaps, inappropriate language, lack of orientation within the normative sources illustrated during the course can only be evaluated negatively.

A first part of the exam is carried out with the subcommittee composed of the appointed collaborators, the second and last with the commission presided over by the teacher.

In order to sit for the oral examination all students are required to enroll into the electronic list through Almaesami website. Students should enroll in compliance with the due deadlines. Those who fail to register by the scheduled date, are required to promptly communicate (and in any case before the official closing of the registration list) the problem to the teacher. The teacher will have the discretion to admit them to take the exam.

Attending students only can sit for a mid-term test, taking place at the end of the course, based on the topics of the whole programme.

NB1: “attending student” means student with at least 75% attendance of the scheduled course hours (including lessons and seminars). The attendance will be recorded by signing the relevant attendance sheet at the end of each lesson or each seminar. No exception will be allowed.

NB2: in order to sit for the mid-term test all attending students are required to: i) enroll into the electronic list through Almaesami system; ii) own personal electronic badge (or valid I.D. Card); iii) being in classroom thirty minutes before the test begins.

NB3: the positive result of the mid-term written exam has value on the final exam exclusively in the exam session rounds immediately following the end of the course, i.e. the summer session.

The mid-term test consists in an individual multiple-choice test (35minutes duration), through computer system. Questions will regard topics examined during the lectures and seminars. Any attending student will be sit up for a different mid-term test. Every question for each mid-term test will be randomly selected by computer system.

Students cannot use the help of notes, books or electronic media.

The mid-term test will consist in thirty questions. For each question will be provided from three to six possible answers, but only one of them will be correct. No answer given or more than one answer selected by student will be considered as a wrong answer. The student must select the answer he considers to be correct. In case student cannot identify, among the different alternatives, the correct one can choose not to answer the single question.

The result of each individual test is determined by the number of correct, wrong and not given answers that determine an absolute score as follows: 1 point for each correct answer, 0 points for each answer not given and a penalty of 0.20 points for each wrong answer, in order to discourage the "ad fortunam" answers. Possible decimal numbers are rounded up (> =50) or defect (<50).

Upon completion of the test the student will be able to know the result obtained, which will appear on the screen.

Students who obtain a score of at least 18/30 pass the test.

Students who score at or above 23/30 pass not only the test but also the exam, so they can decide to record the score obtained as final grade. It’s necessary to enroll for the first round of the summer session to record the grade.

Students who pass the intermediate written test with at least 23/30 can still ask to take an oral integrative test, consisting of 1 or 2 questions, to improve the final evaluation. The final profit grade is calculated as the arithmetic mean of the written test and the oral exam. To take the optional supplementary oral exam students need to enroll for one of the summer session rounds 

Students who score at least 18/30, but less than 23/30, pass the test but do not pass the final exam. Consequently, they cannot register the grade, but are required to take an oral integrative test, consisting of 1 or 2 questions, in order to obtain confirmation of the evaluation obtained in the intermediate written exam. The final profit grade is calculated as the arithmetic mean of the written test and the oral exam. To take the compulsory supplementary oral exam students need to enroll for one of the summer session round, after the first one.

Students who score below 18/30 do not pass either the test or the exam.

Students can always renounce the positive score of the written test and ask to fully take the oral exam. In this case, students have to enroll for any session round.

The mid-term test is purely optional. The attending student who cannot or does not intend to support it, or who does not exceed it, can take the exam in the ordinary form (oral questions) on the whole program.

The mid-term test aims to attract the student, from the first days of attendance, to a regular and systematic study of the subject, with the possibility for him to put to good use this commitment, substantially exceeding the exam as soon as the course ends. In case of failure, the student can get important information on the criticality of his preparation in good time.

Finally, it should be recalled that the lessons will be held in the second semester and, therefore, students who obtain the attendance certificate in the A.A. current will be able to take the exam from May 2020.

Teaching tools

In order to support and facilitate the assimilation of concepts, also through the visualization of logical links, lectures will be powered by the presentation of slides (ppt or pdf files).

Only students who will attended the course, with a frequency of at least 75% of lectures and seminars, will be provided with the following material tools: ppt and pdf slides of all course topics and a reasoned summary of the main regulatory provisions, divided by subject.

All above mentioned tools will be available on Unibo website through a e-learning platform. To get these tools, students should enroll in a specific area in a e-learning platform that will be provided by the Chair.

Students who need compensatory tools for reasons of disability or specific learning disabilities (DSA) are invited to inform the teacher about their needs so as to be directed to the support assistance and agree on the adoption of the most appropriate help.

Office hours

Students can get all information how to contact the teacher and assistants to fix an appointment consulting the Prof. Brunelli’s website.

The teacher will answer to urgent emails, duly signed by the student by name, surname and matriculation number.

For any request concerning lectures and seminars, students are invited to respect the office hours.

Office hours

See the website of Brunella Brunelli