Bankruptcy Law

In accordance with Article L. 631-19-1 of the Commercial Code, where the company's receivership so requires, the court, at the request of the public prosecutor, may make the adoption of the plan conditional on the replacement of one or more of the company's managers. Thus, an executive who prevents the debtor company's receivership through inaction, who is no longer motivated by affectio societati …

Replacement of managers

In accordance with Article L. 631-19-1 of the Commercial Code, where the company's receivership so requires, the court, at the request of the public prosecutor, may make the adoption of the plan conditional on the replacement of one or more of the company's managers. Thus, an executive who prevents the debtor company's receivership through inaction, who is no longer motivated by affectio societatis and whose sole objective is to occupy the company's property free of charge, may be ousted .

When the public prosecutor intends to make such a request, Article R. 631-34-1(1) of the Commercial Code requires that the matter be referred to the court by a petition stating the facts on which the request is based. At the request of the court registrar, the president of the court must summon the manager(s) of the legal entity whose replacement is requested, at least fifteen days before the hearing, by writ issued by a judicial commissioner . This summons must be accompanied by the request of the public prosecutor.

The receiver, if one has been appointed, or the legal representative, must convene the competent corporate bodies to deliberate on the request for replacement.

The court decides on the plan in the light of this deliberation , after hearing or duly summoning, where applicable, the debtor, the receiver if one has been appointed, the legal representative and the representatives of the staff delegation of the social and economic committee .

The court registrar will serve the judgment on each of the managers involved and on the legal representative of the legal entity . The legal representatives appointed, the public prosecutor, the departmental or, where applicable, regional director of public finance for the department in which the debtor has its headquarters and for the department in which the principal place of business is located, as well as the representatives of the staff delegation of the social and economic committee, are notified of the judgment .

Lastly, Article L. 631-19-1(4) specifies that it is impossible to make the adoption of a receivership plan subject to the replacement of a manager when the debtor carries on a liberal professional activity subject to a legislative or regulatory statute. Similarly, the replacement of a manager is unthinkable in the context of a plan adopted without the agreement of the classes of parties affected .

CA Bourges, 6 January 2022, LawLex202200009348JBJ (RJ).

Bankruptcy Law

549. Replacement of managers

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549. Replacement of managers

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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