Bankruptcy Law

Under the terms of Article L. 661-1 of the Commercial Code, the debtor and the public prosecutor may lodge an appeal or appeal in cassation against a decision to open a receivership procedure. Legal representatives who are not appellants must be summoned as respondents . However, an appeal against a judgment declaring the debtor's insolvency plan and procedure to be terminated, without the legal r …

Remedies available to the parties

Under the terms of Article L. 661-1 of the Commercial Code, the debtor and the public prosecutor may lodge an appeal or appeal in cassation against a decision to open a receivership procedure. Legal representatives who are not appellants must be summoned as respondents . However, an appeal against a judgment declaring the debtor's insolvency plan and procedure to be terminated, without the legal representative having been a respondent, may be regularized by means of a writ of compulsory intervention .

Article R. 661-3 of the Commercial Code specifies that, unless otherwise stipulated, the parties have ten days in which to lodge an appeal, starting from the date on which they are notified of the decision to open the receivership. An appeal lodged by the manager of the debtor SCI (real estate company)against the opening of the receivership procedure more than ten days after due notification to the receiver, the only person empowered to represent the debtor and take legal action on its behalf, is inadmissible even if the latter's mission has subsequently been cut short and the judgment has not been notified to the SCI .

The reversal of a judgment which has wrongly opened an insolvency procedure cannot have the effect of rendering ineffective the claims declarations made on its basis. Consequently, creditors are not required to reiterate their claims . On the other hand, the annulment by the court of appeal of the judgment initiating an insolvency procedure retroactively  deprives the judgment which subsequently adopts the plan for the sale of the debtor's assets of any basis . In addition, the annulment of the opening judgment, which entails the annulment of the auction judgment for plots of land belonging to the debtor, restores his status as owner and requires him to reimburse the sale price to the successful bidders .

Finally, the withdrawal of the debtor's appeal implies acquiescence in the judgment opening the procedure and the immediate deferral of jurisdiction by the court of appeal .

Cass. com., 11 October 2016, LawLex202100002213JBJ (LJ).

Cass. com., 5 September 2018, LawLex202100004476JBJ (RJ).

Cass. com., 19 May 2004, LawLex202100004504JBJ (LJ).

Cass. com., 2 May 2001, LawLex202100004497JBJ (RJ).

Cass. com., 29 February 2000, LawLex202100004495JBJ (RJ).

Cass. com., 7 February 2006, LawLex202100004498JBJ (LJ).

Cass. 2e civ., 5 December 2019, LawLex202100004477JBJ (LJ).

Bankruptcy Law

345. Remedies available to the parties

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Les notions juridiques connexes

345. Remedies available to the parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise