Bankruptcy Law

Article R. 661-1 of the Commercial Code provides that judgments and ordinances rendered in safeguard matters are enforceable as of right on a provisional basis (1). However, in certain cases, provisional enforcement may be ordered to be discontinued (2).
1) Principle
Pursuant to Article R. 661-1, the judgment opening the insolvency proceedings takes effect from the first hour of the day on which i …

Principle and exception

Article R. 661-1 of the Commercial Code provides that judgments and ordinances rendered in safeguard matters are enforceable as of right on a provisional basis (1). However, in certain cases, provisional enforcement may be ordered to be discontinued (2).

Pursuant to Article R. 661-1, the judgment opening the insolvency proceedings takes effect from the first hour of the day on which it is pronounced. Registrations regularized on the same day are therefore prohibited . Similarly, any necessary dismissals must be authorized by the bankruptcy judge . On the other hand, the provisional execution of the opening judgment does not, in principle, entail the discharge of the debtor of the management and disposal of his assets , so that acts performed by the debtor as from the opening of the proceedings are not necessarily suspect. Finally, in the same way as the judgment opening the main proceedings, the judgment extending the insolvency procedure is enforceable by operation of law. Consequently, the appointed legal representative cannot be held liable for acts performed in execution of his judicial mandate, even if the judgment has subsequently been annulled .

The first president of the court of appeal, by summary ruling in interim injunction, may, exceptionally, stop the provisional enforcement of the opening judgment when the pleas presented in support of the appeal against the opening decision appear serious . The application must therefore be added to an appeal on the merits. On the other hand, the court may reject an application for a stay of provisional enforcement of a judgment converting an insolvency procedure when, in the exercise of its sovereign power of appreciation, it considers that the pleas put forward are not serious . The court may give reasons for its decision to reject the stay of provisional enforcement solely on the basis that the chances of reversal or annulment of the decision do not appear to be serious, without having to explain itself further . The provisional enforcement of an opening judgment must, on the other hand, be stopped when the judge has based himself on a modest claim of less than EUR 3,000 to characterize the debtor's state of cessation of payments . In addition, the appeal must be lodged against the opening judgment and not against the judgment rejecting the third-party opposition lodged against it .

The revocation of the opening judgment of a safeguard retroactively puts an end to the interest stoppage, which applied as of right as of its pronouncement . On the other hand, a claim admitted after the opening judgment cannot be called into question by the subsequent cassation of the ruling confirming this judgment .

Cass. com., 2 October 2007, LawLex202100004466JBJ (LJ).

Cass. soc., 12 May 1998, LawLex202100004444JBJ (RJ).

Cass. com., 30 October 2012, LawLex202100004501JBJ (LJ).

Cass. com., 7 March 2006, LawLex202100004443JBJ (RJ).

Cass. com., 30 October 2012, LawLex202100004463JBJ (LJ).

Cass. com., 17 July 2001, LawLex202100004472JBJ (LJ).

Cass. com., 4 June 2013, LawLex202100004473JBJ (RJ).

CA Paris, 6 December 2018, LawLex202100004512JBJ (LJ).

Cass. com., 7 June 2005, LawLex202100004471JBJ (LJ).

Cass. com., 17 October 2018, LawLex202100002210JBJ (S).

Bankruptcy Law

74. Principle and exception

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

74. Principle and exception

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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