Participation of the presiding judge in the formation of the Court

Cass., 4 December 2015, n. 24718

With Judgment No. 24718/2015, filed on 4 December 2015 (President A. Ceccherini – Recorder A. Didone), the First Civil Chamber of the Supreme Court stated that the participation of the presiding judge who decided on the filing of claims in a bankruptcy in the formation of the Court called to rule on the opposition of claims in a bankruptcy does not render the judgement null and void.

In such a situation, the presiding judge is assumed to be incompatible incurring an obligation for him to abstain, in accordance with Art. 51, fourth paragraph, of the Civil Procedure Code, to which the rule laid down in Art. 99, paragraph 10, the Bankruptcy Act applies in particular ("the presiding judge in a bankruptcy cannot be a member of the formation of the Court").

If the judge violates this obligation, it is the responsibility of the interested party to propose the former's recusal under Art. 52 of the Civil Procedure Code and the failure to exercise this recusal power in the forms and within the terms provided for by the rule does not render the judgement invalid.