Bankruptcy Law

As soon as the application is received, the president of the court summons the legal representative of the debtor legal entity or the debtor natural person to a meeting with the court Registrar in order to hear his explanations . On this occasion, the debtor must convince the court that recourse to the procedure will make it possible to deal with the difficulties. Once the debtor has been heard, t …

Prerogatives of the court

As soon as the application is received, the president of the court summons the legal representative of the debtor legal entity or the debtor natural person to a meeting with the court Registrar in order to hear his explanations . On this occasion, the debtor must convince the court that recourse to the procedure will make it possible to deal with the difficulties. Once the debtor has been heard, the president of the court can only accept or refuse to grant the request . In either case, the court Registrar notifies the debtor of the order ruling on his request .

If his request is not granted, the debtor may lodge an appeal by a declaration made or sent by registered letter with acknowledgement of receipt to the court Registrar's office. In this case, he is exempted from the ministry of a lawyer. The president of the court may, within five days of the declaration of appeal, modify or retract his decision. If this is the case, the court Registrar notifies the debtor of the decision. If not, the court Registrar shall without delay transmit the case file with the statement of appeal and a copy of the decision to the court Registrar and shall notify the debtor of this transmission. The appeal shall be heard and determined in accordance with the rules applicable to non-contentious matters before the judicial court . When a conciliator is appointed, the notification shall reproduce the provisions of Articles R. 611-27 and R. 611-28 of the Commercial Code concerning recusal. The court Registrar shall immediately communicate the decision opening the conciliation procedure to the Public Prosecutor's Office and, where applicable, to the professional order or authority to which the debtor belongs. It is also notified to the conciliator. The letter of notification reproduces the provisions of Article L. 611-13 concerning incompatibilities with the function of conciliator and of Articles R. 611-27 and R. 611-28 of the Commercial Code. The conciliator shall immediately inform the President of the Court of his acceptance or refusal. In case of acceptance, he/she shall certify on his/her honor that he/she is not subject to any incompatibility .

The order appointing the conciliator defines the purpose of his mission and sets the conditions of his remuneration . It is up to the president of the court to verify that the applicant has not been in a state of suspension of payments for more than 45 days: this mission cannot be delegated to the conciliator . The president of the court may, at any time during the proceedings , notwithstanding any legislative or regulatory provision to the contrary, obtain any information enabling him to assess the economic, financial, social and patrimonial situation of the debtor and his prospects of settlement. It may send its requests for details to the auditors, certified public accountants, notaries, members and representatives of the personnel, government agencies and organizations, social security and welfare organizations, credit institutions, finance companies, electronic money institutions, payment institutions, insurance companies, as well as to the services responsible for centralizing banking risks and payment incidents. In addition, he may instruct an expert of his choice to draw up a report on the economic, financial, social and property situation of the debtor .

The debtor may challenge the conciliator appointed by the president of the court under certain conditions and time-limits . This is the case if the conciliator has a direct or indirect personal interest in the proceedings, if there is a direct or indirect link of any kind between the conciliator and one of the creditors or one of the creditor's managers or employees, or if there is a cause of mistrust between the conciliator and the debtor, if the conciliator is in one of the situations of incompatibility referred to in Article L. 611-13, or if he or she has been definitively deregistered from or removed from a regulated profession. The court Registrar notifies the conciliator of the request for recusal by registered letter with acknowledgement of receipt. Upon receipt of the notification of the request, the conciliator shall refrain from acting until the challenge has been decided. Within eight days of such receipt, he or she shall inform the president of the court in writing either of his or her acquiescence in the challenge or of the reasons for opposing it . If the challenge is accepted, the conciliator shall be replaced without delay . The decision rejecting the challenge may be appealed by the debtor to the first president of the court of appeal within ten days of notification. The appeal shall be lodged by delivering or sending to the Registrar's office of the court of appeal a note setting out the reasons . The Registrar of the Court of Appeal shall convene the debtor and the conciliator by registered letter with acknowledgement of receipt sent at least fifteen days in advance. The note setting out the reasons is attached to the summons sent to the conciliator. The first president or his delegate hears the parties. The decision is notified by the court Registrar to the debtor. The conciliator is notified of it . The conciliator may also take the initiative of recusal, as long as he must “inform the president of the court without delay of any element that could constitute a reason for recusal as well as any other reason that could justify the termination of his mission, of which he was not aware at the time of accepting his mission” .

At the time of appointment, the president of the court must set the terms of remuneration of the conciliator in view of the diligence involved in carrying out his mission, after having obtained the written agreement of the debtor . The conciliator may make proposals as to the conditions of his remuneration. The court Registrar shall notify the conciliator and the debtor of the ordinance fixing his remuneration . The decision that fixes the remuneration of the agent may be appealed to the first president of the court of appeal by the debtor, the conciliator and/or the public prosecutor . Finally, the remuneration of the conciliator may be re-evaluated with the agreement of the debtor, failing which his mission is terminated .

The duration of the conciliator's mission cannot in principle exceed four months. Nevertheless, the president of the court may extend this period at the request of the conciliator without the total duration of his mission exceeding five months. Furthermore, if a request for a finding or homologation has been filed before the expiration of this period, the mission of the conciliator and the procedure are extended until the decision, as the case may be, of the president of the court or the court. Failing this, they are automatically terminated and a new conciliation cannot be opened within the following three months . The duration of the conciliator's mission may also be shortened at the request of the conciliator when his proposals are rejected by the debtor . The debtor may also request the president of the court to terminate the conciliator's mission . The decision to terminate the conciliation procedure is not subject to appeal . However, the president of the court that has opened conciliation proceedings is not authorized, unless he or she is committing an excess of power, to seize himself or herself of his or her own accord to put an end to the proceedings, since the proceedings are terminated only by the establishment or homologation of a memorandum of understanding, by the expiry of the time-limit set out in the ordinance, or at the request of the debtor or the conciliator .

CA Dijon, 13 July 2017, LawLex202100003599JBJ.

Commercial Code, Art. L. 611-14 and R. 611-48.

Bankruptcy Law

26. Prerogatives of the court

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

26. Prerogatives of the court

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise