Bankruptcy Law

Criminal proceedings are brought either by the public prosecutor's office, or by the receiver, the legal representative, the employees' representative, the commissioner for the enforcement of the plan or the liquidator . The liquidator of the debtor company may bring a civil action without having to prove any harm . The commissioner for the enforcement of the plan may bring a civil action for comp …

Civil action

Criminal proceedings are brought either by the public prosecutor's office, or by the receiver, the legal representative, the employees' representative, the commissioner for the enforcement of the plan or the liquidator . The liquidator of the debtor company may bring a civil action without having to prove any harm . The commissioner for the enforcement of the plan may bring a civil action for compensation for the harm resulting directly from the offense of bankruptcy, which has a different object from the action for satisfaction of liabilities . In the absence of closure of the insolvency procedure, the creditor is entitled to take action where the impoverishment of the debtor company, directly caused by the practices, has been established .

The majority of the creditors appointed as controllers may also act, in the collective interest of the creditors, when the legal representative with standing to act has failed to act, following formal notice sent to the legal representative by registered letter with acknowledgement of receipt, which has remained unsuccessful for two months from receipt . The legal representative's formal notice to act must be issued by at least two controlling creditors. If one of the two court-supervised liquidation monitors withdraws its claim for damages after the opening statement of claim, this does not affect the admissibility of the complaint, which must be examined on the date on which it was duly filed by the majority of the creditors appointed as monitors acting in the collective interest of the creditors in accordance with Article L. 654-17 of the Commercial Code .

Moreover, a creditor may only bring a civil action by way of intervention if he or she claims harm distinct from the amount of his or her claim declared in the insolvency procedure opened against his or her debtor and resulting directly from the infringement . He may also bring a civil action against accomplices to the offense of bankruptcy, who are not the subject of an insolvency procedure and whose assets are not consequently the pledge of all creditors, where he alleges a particular harm distinct from the amount of his claim and resulting directly from the offense . Creditors who are victims of the actions of a manager prosecuted for bankruptcy may bring a civil action even if the liquidator is also compensated for the harm suffered by the debtor company, corresponding to the total amount of claims declared as liabilities, provided that they do not thereby receive double compensation, as the sums obtained are deducted from the amount of the claims adopted as part of the insolvency procedure .

Similarly, the civil action brought by shareholders of the debtor company is inadmissible where it is not based on a harm distinct from that suffered by the company ; nor is that brought by an employee redundant for economic reasons following the court-supervised liquidation, where the harm does not result directly from the offense of bankruptcy .

The compensation awarded to a debtor company bringing a civil action for bankruptcy cannot be symbolic, but must correspond to the amounts embezzled , and not to all the liabilities, if it has not been established that its fault was the exclusive cause . When a manager is found guilty of bankruptcy fraud by misappropriation of assets for having sold a building and cashed the price, after the court-supervised liquidation, the collective harm to creditors represented by the liquidator who brings the civil action results from the reduction in assets and is necessarily equal to the value of the fraudulently misappropriated property .

Lastly, a civil action brought on the basis of the offense of bankruptcy cannot be aimed at paying off the debtor company's liabilities . Nevertheless, a creditor's civil action may be brought without harm to an action for judgment against the manager of the debtor company to make good the debt, provided that the two actions have a different purpose . Similarly, an action to make good liabilities, which is intended to punish mismanagement on the part of the manager, and the civil action brought by the liquidator, which is intended to make good the harm caused by the offense of bankruptcy, may be brought cumulatively .

Cass. crim., 21 October 2020, LawLex202100005852JBJ (LJ).

Cass. crim., 3 June 2015, LawLex202100001892JBJ (LJ).

Cass. crim., 27 April 2000, LawLex202100002035JBJ (RJ).

Cass. crim., 11 December 2013, LawLex202100001893JBJ (LJ).

Cass. crim., 13 March 1995, LawLex202200009105JBJ (LJ).

Cass. crim., 5 August 1998, LawLex202200010837JBJ (RJ).

Cass. crim., 11 March 2015, LawLex202200011112JBJ (LJ).

Cass. crim., 10 October 2001, LawLex202200009130JBJ (LJ); 11 June 2008, LawLex202200010649JBJ (LJ), considering that a civil action may be brought, in the context of bankruptcy proceedings, against a manager already sentenced in civil proceedings to make good any shortfall in assets.

Cass. crim., 13 June 2001, LawLex202200009131JBJ (LJ).

Cass. crim., 19 November 2008, LawLex202300008725JBJ (RJ).

C. com., art. L. 654-17 and art. R. 654-1.

Cass. crim., 8 July 2020, LawLex202200009114JBJ (LJ).

Cass. crim., 17 June 2014, LawLex202100002050JBJ; 22 June 2022, LawLex202200008846JBJ (RJ).

Cass. crim., 11 October 1993, LawLex202200009128JBJ (LJ).

Cass. crim., 6 April 2016, LawLex202100002051JBJ (LJ).

Bankruptcy Law

1040. Civil action

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Les notions juridiques connexes

1040. Civil action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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