Bankruptcy Law

Article L. 621-1 of the Commercial Code, applicable by reference to Article L. 631-7, allows the court, before ruling on the opening of the procedure, to appoint a court to gather all information on the financial, economic and social situation of the company, in order to assess, in particular, whether it is indeed in a state of cessation of payments. The ordinance of the president of the commercia …

Investigation of debtor's situation

Article L. 621-1 of the Commercial Code, applicable by reference to Article L. 631-7, allows the court, before ruling on the opening of the procedure, to appoint a court to gather all information on the financial, economic and social situation of the company, in order to assess, in particular, whether it is indeed in a state of cessation of payments. The ordinance of the president of the commercial court appointing an investigating court must be annulled, since this prerogative belongs solely to the court itself .

In principle, a court's decision to appoint an investigating court to verify waivers of debts and the status of shareholders' current accounts, in order to determine whether an insolvency procedure should be opened, is not subject to appeal, unless it is ultra vires . There is no minimum limit to the duration of the investigating court's inquiry into the economic and social situation of a company and its prospects for receivership. Consequently, a court hearing an application to open a receivership procedure could, even if it has appointed an investigating court, open a receivership procedure on the same day .

The investigating court, who is not obliged to hear the company's representatives , may be assisted by any expert of his or her choice. The court itself cannot appoint an expert to assist the investigating court without committing an excess of power .

The investigating court's report on the company's financial, economic and social situation must be drawn up in writing, filed with the court registry's office and communicated to the debtor and the public prosecutor to enable an adversarial debate to take place at the hearing. Failure to comply with these formalities may result in the opening judgment being declared null and void . Under the same sanction, the investigating court may not sit on the judgment panels, nor take part in the deliberations of the procedure .

CA Reims, 14 March 2011, LawLex202100005128JBJ (LJ).

CA Amiens, 8 April 2004, LawLex202200000091JBJ (RJ).

CA Paris, 24 October 1989, LawLex202100005001JBJ (LJ).

Cass. com., 28 January 1997, LawLex202100005126JBJ (LJ).

CA Paris, 12 June 2018, LawLex202100005125JBJ (LJ).

CA Pau, 25 April 2013, LawLex202100005127JBJ (LJ).

Bankruptcy Law

325. Investigation of debtor's situation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

325. Investigation of debtor's situation

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise