Bankruptcy Law

Under the terms of Article L. 654-8, 1° of the Commercial Code, any person mentioned in Article L. 654-1  is liable to two years' imprisonment and a fine of EUR 30,000 for taking any action or making any payment in breach of the provisions of Article L. 622-7. In fact, a manager who does not refrain from making any payment on behalf of the debtor company, from the date of the opening of the insolv …

Infringement of prohibitions

Under the terms of Article L. 654-8, 1° of the Commercial Code, any person mentioned in Article L. 654-1  is liable to two years' imprisonment and a fine of EUR 30,000 for taking any action or making any payment in breach of the provisions of Article L. 622-7. In fact, a manager who does not refrain from making any payment on behalf of the debtor company, from the date of the opening of the insolvency procedure, in violation of the prohibition on payments, commits a fault likely to give rise to liability, irrespective of the purpose of the payments made, since it is common ground that they were made without the assistance of the receiver . The payment of invoices for services rendered prior to the opening of the insolvency procedure, in breach of the prohibition on payments of prior claims, is a criminal offense . On the other hand, the reversal of accounting entries from one account to another does not constitute an irregular payment within the meaning of Article L. 654-8 of the Commercial Code .

Article L. 654-8, 2° also makes it a criminal offense for any person mentioned in Article L. 654-1 to make a payment in breach of the terms and conditions for settling liabilities set out in the safeguard plan or receivership plan, or an act of disposal without the authorization of the court provided for in Article L. 626-14. Furthermore, any person who, during the observation period or the period of execution of the safeguard plan or receivership plan, with knowledge of the debtor's situation, enters into one of the transactions mentioned in 1° and 2° with the debtor, or receives an irregular payment from the debtor, or disposes of an asset rendered inalienable under Article L. 642-10, is also punishable by two years' imprisonment and a fine of EUR 30,000, in accordance with Article L. 654-8, 3° and 4°.

Article L. 654-15 of the Commercial Code makes it a criminal offense for any person to carry out a professional activity or function in violation of the prohibitions, disqualifications or incapacities set out in Articles L. 653-2 and L. 653-8, relating to personal bankruptcy and management bans, and punishable by two years' imprisonment and a fine of EUR 375,000. Violation of a management ban resulting from a personal bankruptcy measure must necessarily be prosecuted on the basis of Article L. 654-15 of the Commercial Code, and not Article 434-40-1 of the Criminal Code . Becoming the de facto manager of a company constitutes the offense of exercising a commercial profession in defiance of a prohibition . Similarly, a person who plays a role exceeding that of a commercial director, and behaves as the true master of the debtor company, in place of its legal representative, in violation of a five-year management ban handed down in the context of another dispute, may see his or her management ban concerned for ten years .

C. com., art. L. 654-1: "1° [...] any person exercising a commercial or craft activity, any farmer and any natural person exercising an independent professional activity, including a liberal profession subject to a legislative or regulatory status or whose title is protected ;

2° [...] any person who has, directly or indirectly, in law or in fact, managed or liquidated a legal entity governed by private law;

3° [...] natural persons who are permanent representatives of legal entities and managers of the legal entities defined in 2° above".

CA Paris, 14 June 2023, LawLex202300008773JBJ (RJ).

CA Versailles, 6 May 2010, LawLex202300008777JBJ.

CA Amiens, 12 April 2007, LawLex202300008779JBJ (LJ).

Cass. crim., 26 January 2022, LawLex202200002745JBJ (LJ).

Cass. crim., 23 October 1997, LawLex202100002007JBJ (RJ).

Cass. crim., 7 November 2018, LawLex202200010836JBJ (LJ).

Bankruptcy Law

1041. Infringement of prohibitions

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1041. Infringement of prohibitions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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