Bankruptcy Law

Irrespective of the debtor's activity, it must be carried on independently in order to benefit from the insolvency proceedings. The criterion of independence justifies the exclusion of partners and managers from the scope of application of Book VI of the Commercial Code . In order to benefit from these provisions, the debtor must effectively carry on an independent professional activity, distinct  …

Independence criterion

Irrespective of the debtor's activity, it must be carried on independently in order to benefit from the insolvency proceedings. The criterion of independence justifies the exclusion of partners and managers from the scope of application of Book VI of the Commercial Code . In order to benefit from these provisions, the debtor must effectively carry on an independent professional activity, distinct from that carried on in the name and on behalf of the company .

In addition, if the debtor ceases to exercise his activity on an individual basis to become the sole shareholder of an incorporated professional practice, he can no longer be summoned to open insolvency proceedings at the end of the one-year period , even if all or part of the liabilities come from this previous professional activity .

Independence cannot be deduced from the sole status of sole shareholder. Indeed, the sole shareholder and manager of a single-member limited liability company is not subject to the insolvency proceedings but to the regime of overindebtedness of individuals (surendettement des particuliers) . Similarly, the fact that a person is a majority partner is not in itself sufficient to make him or her subject to the law of insolvency proceedings . This is also the case for the sole mention of the status of sole contractor in the SIRENE directory of the National Institute for Statistics and Economic Research (INSEE) of the manager and majority partner , or the sole status of manager of a company . The manager must prove that he or she carries out an individual activity that is distinct from the management of the company .

See Cpdt., C. com. Law No 221-1 for general partners and Art. L. 222-1 for active partners, both of whom are traders and may therefore be subject to the regime of insolvency proceedings.

Cass. com, 20 September 2017, LawLex202100005710JBJ. See in particular Cass. com., 12 November 2008, LawLex202100005709JBJ considering that the manager of a LLC, who acts on behalf of the company he represents and not in his personal name, cannot be placed in receivership since he does not exercise an independent professional activity.

Cass. com., 16 September 2014, LawLex202100001850JBJ holding that a dental surgeon, who has ceased to exercise his activity as an individual in order to become the sole partner of a liberal practice company, no longer acts in his own name but in that of the company and can no longer be summoned for receivership  at the end of the one-year period.

Cass. com., 9 February 2010, LawLex202100003660JBJ (RJ).

Cass. 2e civ., 13 October 2016, LawLex202100005826JBJ.

CA Aix-en-Provence, 23 February 2017, LawLex202100006063JBJ (RJ).

Cass. com., 20 September 2017, cited above. 

Cass. 2e civ., 21 January 2010, LawLex202100006249JBJ (S).

Cass. com, 15 November 2016, LawLex202100005711JBJ considering that the fact that a manager participates in the agricultural activities of the company in his capacity as head of the farm is not sufficient to prove that he individually carries out an activity distinct from the management of the LLC.

Bankruptcy Law

36. Independence criterion

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

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

36. Independence criterion

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

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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