Bankruptcy Law

Liability for inadequate assets is a closed action: the matter can only be referred to the court by the liquidator or the public prosecutor . The liquidator has standing to bring an action against a manager, even if the company in question is an investment firm subject to prudential supervision . A first enforcement order, which does not validly institute the liquidator's action for liability for  …

Standing

Liability for inadequate assets is a closed action: the matter can only be referred to the court by the liquidator or the public prosecutor . The liquidator has standing to bring an action against a manager, even if the company in question is an investment firm subject to prudential supervision . A first enforcement order, which does not validly institute the liquidator's action for liability for insufficiency of assets, in the absence of any mention of his capacity as an organ of the procedure, may be regularized by a second enforcement order, filed in his capacity as liquidator .

In the collective interest of creditors, the court may also be seized by the majority of creditors appointed as controllers when the liquidator has failed to act, following formal notice sent by registered letter with acknowledgement of receipt, which has remained unanswered for two months from receipt . The failure of the liquidator to authorize the controller to bring an action before the court is not established when the controller has written to the controller stating that he does not intend to bring such an action against the manager . The formal notice to institute the action must be issued by at least two creditors : the seriousness, for the manager being sued, of the consequences of the action for liability for inadequate assets justifies that it cannot be instituted by a single controller, who has the option of asking the bankruptcy judge to refer the matter to the court for the purpose of replacing the liquidator who fails to act . However, the fact that two controllers have the same manager and the same registered office does not mean that a single controller has acted, since they are two distinct entities, each with legal personality and different corporate objects .

An action to make good a shortfall in assets cannot be brought by one manager against another . Nor can the receiver of a debtor company take action against other condemned managers, even as a guarantee, or claim that they are not entitled to the same treatment . Similarly, a partner is not entitled to bring an action against a former manager, for alleged mismanagement, on the grounds of insufficient assets, which is the exclusive preserve of the persons referred to in Article L. 651-3 of the Commercial Code . However, the appellant may summon all persons who were parties in the first instance, including those against whom it would be inadmissible to present claims, given that the action is reserved for the liquidator, the public prosecutor and the majority of the auditors .

Cass. com., 17 April 2019, LawLex202100001786JBJ (LJ).

Cass. com., 26 May 1999, LawLex202300010523JBJ (RJ).

Cass. com., 30 June 2015, LawLex202100001784JBJ (LJ).

CA Douai, 24 November 2022, LawLex202300007882JBJ (LJ).

C. com., art. L. 651-3, al. 2 and art. R. 651-4.

CA Rouen, 28 May 2009, LawLex202100005605JBJ (RJ).

C. com., art. R. 651-4. See for an application, Cass. com., 24 May 2018, LawLex202100001782JBJ (LJ).

Cass. com., 30 January 2018, LawLex202100001796JBJ (LJ).

CA Paris, 20 January 2023, LawLex202300007888JBJ (LJ).

Cass. com, 20 April 2017, LawLex202100001697JBJ (LJ), holding that a de facto manager does not have standing to act against another manager of the company to obtain his contribution to the insufficiency of assets; 12 July 2016, LawLex202100001747JBJ (LJ), holding that a manager condemned to bear an insufficiency of assets is not admissible, even as a guarantee, to act against another manager sued on the same basis and to criticize the different fate reserved for him ; 12 June 2019, LawLex202100001783JBJ (LJ), holding that the impossibility for the manager implicated for mismanagement having contributed to an insufficiency of assets, to act on a principal basis against his successor in that position, in place of the judicial liquidator, in order to have the latter declared liable for the insufficiency of assets, does not constitute a disproportionate infringement of his right of access to the court, since he is free, in the course of his defense, to invoke all the means enabling the court to assess the appropriateness and amount of a sentence pronounced against him.

Cass. com., 5 May 2004, LawLex202200009925JBJ (LJ).

Bankruptcy Law

988. Standing

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988. Standing

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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