Bankruptcy Law

The debtor exercises rights and actions which are not included in the mission of the liquidator or receiver when one has been appointed . This applies to his “proper rights”, in particular the right to remedy certain decisions, such as those declaring him inadmissible to act when he claims that the nature or scope of the rules relating to divestiture have been violated, provided that he acts again …

Exercise of proprietary rights

The debtor exercises rights and actions which are not included in the mission of the liquidator or receiver when one has been appointed . This applies to his “proper rights”, in particular the right to remedy certain decisions, such as those declaring him inadmissible to act when he claims that the nature or scope of the rules relating to divestiture have been violated, provided that he acts against or in the presence of his liquidator .

The debtor may, without the assistance of any receiver appointed, lodge an appeal, or an appeal in cassation, against decisions ruling on the opening, pronouncement or extension  of the liquidation procedure . He may also request closure of the proceedings . The exercise of his own rights includes appealing against rulings concerning the modification of the receiver's mission , or the adoption  or rescision  of a plan to sell the company, without having to justify an interest of his own .

Despite the divestiture, the debtor can lodge a remedy against the ordinance of the bankruptcy judge authorizing the liquidator to administer or dispose of his assets. Such is the case of an ordinance authorizing the liquidator to sign a settlement agreement for the transfer of shares , authorizing the sale by public auction of an immovable , or ordering the sale of an asset dependent on the judicial liquidation . The court cannot declare this remedy inadmissible, unless it is committing an abuse of power , as long as the respondent liquidator has appeared in the proceedings . The Court of Cassation also seems to authorize the debtor to raise a claim concerning seizure alone, when he has contested the ordinance of the bankruptcy judge having authorized the sale of his property by public auction, and this contestation has not been rejected .

Article L. 624-3 of the Commercial Code  gives debtors the right to remedy decisions by the bankruptcy judge concerning the verification and admission of claims . A debtor company in court-supervised liquidation also has the right to lodge an appeal  or to continue the appeal proceedings, in progress on the day the insolvency procedure is opened , against a decision ordering it to pay a sum of money for a reason prior to the judgment opening the procedure, even if its liquidator refuses to act on its behalf for lack of cash . The debtor company, represented by a ad hoc agent, may also intervene voluntarily, on an ancillary basis, in proceedings instituted on the third-party objection of one of its partners against a judgment fixing a prior claim .

Furthermore, the debtor may always defend an action brought against him by the liquidator, such as an action to postpone the date of cessation of payments, on the basis of his proper rights . If the postponement action is contentious in nature, the debtor must be summoned in the person of his manager, failing the submission to the court registry of a joint petition, or the voluntary presentation of the parties, as evidenced by the signing of minutes . The debtor is not required to justify a personal interest if he wishes to appeal the date set by the courts . He may also defend himself against the liquidator's claim that the gift of bare ownership of a building to his daughters is unenforceable , or that requires him to acquaint himself with the specifications the liquidator has filed, and that are organizing the sale by public auction of a building he owns with his wife . He then has the right to appeal against a decision to seize his earnings . However, he is not entitled to make representations during the sale procedure initiated by the liquidator .

Lastly, Article L. 641-9, I(2) of the Commercial Code allows the debtor to bring a civil action, but with the sole aim of establishing the guilt of the perpetrator of a crime or misdemeanour of which he is the victim. Within these limits, the debtor's manager may appeal against an ordinance partially dismissing the case .

Cass. com., 14 June 2017, LawLex202100001068JBJ (LJ) ; 31 January 2017, LawLex202100002169JBJ (LJ) ; 2 April 1996, LawLex202100002146JBJ.

Cass. com., 18 January 2011, LawLex202100002166JBJ (LJ).

Cass. com., 17 February 2015, LawLex202100001067JBJ (LJ) ; 23 September 2014, LawLex202100002171JBJ (LJ).

Cass. com., 5 October 2010, LawLex202100001065JBJ (LJ).

Cass. com. 15 February 2000, LawLex202100002437JBJ (LJ). See also Cass. com. 3 February 1998, LawLex202100001116JBJ (LJ), holding that debtors may exercise remedy alone against a decision to rescind a sale, even though they had not asked the court to do so at the time they were in control of their assets, if they do so against the liquidator or in his presence.

Cass. com., 21 November 2018, LawLex202100001066JBJ (LJ) ; 31 January 2017, LawLex202100002169JBJ (LJ) ; 11 October 2016, LawLex202100002167JBJ (LJ) ; 18 January 2011, LawLex202100002166JBJ (LJ).

Applicable to the receivership procedure on reference from art. L. 641-14.

See, by analogy, Cass. com. 24 January 2018, LawLex202100001048JBJ (S), admitting the debtor's remedy against the bankruptcy judge's decision to admit a claim to his liabilities.

Cass. com., 11 May 1993, LawLex202100001059JBJ (LJ).

Cass. com., 27 March 2007, LawLex202100002648JBJ (LJ).

Cass. com., 8 September 2015, LawLex202100001060JBJ (LJ).

See in particular Cass. com., 27 September 2016, LawLex202100001052JBJ (LJ).

Cass. com., 26 May 2010, LawLex202100004483JBJ (LJ).

C. com., art. L. 631-8, applicable to the receivership procedure by reference to art. L. 641-1, IV.

Cass. com., 19 May 2015, LawLex202100001877JBJ (LJ).

Cass. com., 17 May 2017, LawLex202100001057JBJ (LJ).

Cass. com., 8 July 2013, LawLex202100001050JBJ (LJ).

Cass. com., 17 November 2009, LawLex202100001051JBJ (LJ).

Cass. 2e civ., 7 January 2016, LawLex202100002112JBJ (LJ).

Cass. com. 28 January 2004, LawLex202100001064JBJ (LJ); 2 April 1996, LawLex202100002146JBJ (LJ), holding that a debtor in court-supervised liquidation cannot file a statement requesting the suspension of proceedings pending the implementation of disability insurance, since he is divested of the administration and disposal of his assets and represented by the liquidator.

Cass. crim., 30 January 2019, LawLex202200011551JBJ (LJ).

C. com., art. L. 643-9, al. 4. For an application, see Cass. com., 5 March 2002, LawLex202200000871JBJ (LJ).

C. com., art. L. 661-6, II. For an application, see Cass. com., 17 July 2001, LawLex202100005049JBJ (RJ).

Cass. com., 12 July 2017, LawLex202100001071JBJ (LJ).

Cass. com., 24 January 2018, LawLex202100001046JBJ (LJ).

Bankruptcy Law

691. Exercise of proprietary rights

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691. Exercise of proprietary rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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