Bankruptcy Law

According to Article L. 621-9 of the Commercial Code, “[t]he bankruptcy judge is responsible for ensuring that the proceedings are conducted promptly and that the interests of the parties involved are protected”. In this context, he has a right of communication which allows him to assess the situation of the company. He thus exchanges with the receiver and the legal administrator, who keep him inf …

Role of the bankruptcy judge

According to Article L. 621-9 of the Commercial Code, “[t]he bankruptcy judge is responsible for ensuring that the proceedings are conducted promptly and that the interests of the parties involved are protected”. In this context, he has a right of communication which allows him to assess the situation of the company. He thus exchanges with the receiver and the legal administrator, who keep him informed of the progress of the proceedings, and with the public prosecutor, who communicates to him all the information he holds that may be useful to the proceedings . He may also obtain from the statutory auditors, chartered accountants, notaries, members and representatives of the personnel, public administrations and organizations, social security and welfare organizations, credit institutions, finance companies, electronic money institutions, payment institutions as well as services responsible for centralizing banking risks and payment incidents, information likely to provide him with accurate information on the economic, financial, social and assets situation of the debtor, notwithstanding any legislative or regulatory provision to the contrary .

Furthermore, the hearing of an application for the continuation of current contracts falls within the exclusive jurisdiction of the official receiver and not within the jurisdiction of the interim judges . His jurisdiction extends to contracts of an administrative nature, where these are in progress on the day of the opening of the insolvency proceedings of the debtor . The bankruptcy judge also has jurisdiction to hear a dispute concerning the automatic termination of a current contract, even if it was concluded by the delegatee of a public service and includes an authorization to occupy the public domain . The bankruptcy judge, rather than the civil judge, also has exclusive jurisdiction to rule on the admission of a claim , provided that the non-performance or improper performance of the contract is not the subject of the dispute and that the debtor's obligation to reimburse is not debatable . Consequently, the court cannot be directly seized, by way of a writ of summons, of a dispute relating to the admission of a claim to the liabilities of the insolvency proceedings . The powers of the official receiver also extend to the realization of assets and allow him to order the sale by public auction of the debtor's assets . Finally, he rules as a judge of first instance on claims brought against the acts of the legal representatives .

On the other hand, he exceeds his powers when he substantially modifies an ordinance relating to the transfer of the shares of a company in insolvency proceedings when it has not been the subject of an appeal before the court . Similarly, the bankruptcy judge has no jurisdiction to rule on an appeal by the legal representative concerning the validity or enforceability of the authorization of a seizure of the debtor's property by an examining court .

In addition, the bankruptcy judge is responsible for drawing up a report for the court, which decides on all matters relating to the safeguarding . This report does not necessarily have to be in writing , as there are no provisions specifically prescribing such formalism. Similarly, there is no provision requiring the court of first instance that opens the insolvency proceedings of a debtor to specify the form in which the bankruptcy judge has made his report .  Failure to comply with the formality of the bankruptcy judge's report, whatever its form, results in the annulment of the decision  but does not affect the first court's referral . A report on the draft plan is also requested from the official receiver when no receiver has been appointed in the proceedings .

Cass. com., 16 March 1999, LawLex202100005173JBJ (LJ).

Cass. com., 15 November 2017, LawLex202200000267JBJ (LJ).

Cass. com., 25 March 1997, LawLex202100005148JBJ (LJ) ; 29 March 1989, LawLex202100005152JBJ (RJ).

Cass. com., 17 June 1997, LawLex202100005149JBJ (LJ).

CA Paris, 28 June 2006, LawLex202100005139JBJ considering that the production of the official receiver's report constitutes a substantial formality, the non-observance of which leads to the nullity of the court's judgment; CA Nancy, 27 June 2012, LawLex202100006081JBJ holding that the extension judgment rendered in the absence of the official receiver's report must be annulled for violation of substantial forms; CA Pau, 9 May 2016, LawLex202100006068JBJ. 

Cass. com, 17 November 2015, LawLex202100005090JBJ; CA Aix-en-Provence, 6 March 2014, LawLex202100005088JBJ holding that the nullity for irregularity of form of the judgment, which ordered the forced transfer to a company of shares held by a partner in the capital of two others subject to a single insolvency proceeding, without mentioning, even in the form of a visa, the presence of the official receiver at the hearing or the filing of his report, does not affect the legality of the seizure of the court by the public prosecutor.

Cass. com., 8 December 1987, LawLex202100005151JBJ (RJ).

Cass. com., 16 June 2004, LawLex202100002779JBJ (RJ).

Cass. com., 18 June 2013, LawLex202100006287JBJ (LJ).

Cass. com., 16 September 2008, LawLex202100005175JBJ (RJ).

Cass. com., 27 October 1998, LawLex202100005174JBJ (RJ).

Cass. com., 11 February 2014, LawLex202100005172JBJ considering that such a transaction does not constitute a compulsory execution measure whose contestations would fall under the jurisdiction of the enforcement judge.

Bankruptcy Law

65. Role of the bankruptcy judge

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

65. Role of the bankruptcy judge

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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