Bankruptcy Law

The bankruptcy judge is responsible for ensuring that the procedure runs smoothly and that the interests of the parties involved are protected . To this end, he has a right of communication that enables him to assess the company's situation. He interacts with the liquidator, who keeps him informed, at least every three months, of the progress of the procedure, and may, at any time, request communi …

Role of the bankruptcy judge

The bankruptcy judge is responsible for ensuring that the procedure runs smoothly and that the interests of the parties involved are protected . To this end, he has a right of communication that enables him to assess the company's situation. He interacts with the liquidator, who keeps him informed, at least every three months, of the progress of the procedure, and may, at any time, request communication of all acts or documents relating to the procedure . He may also obtain from statutory auditors, chartered accountants, notaries, members and representatives of the employees, government departments and public bodies, social security and welfare organizations, credit institutions, finance companies, electronic money institutions, payment institutions and services responsible for centralizing banking risks and payment incidents, information likely to provide him with accurate information on the economic, financial, social and asset situation of the debtor, notwithstanding any legislative or regulatory provision to the contrary .

The bankruptcy judge may authorize the liquidator or receiver, if appointed, to pay prior claims, to withdraw the pledge or thing legitimately retained, or to exercise the purchase option on a leasing contract . In addition, the bankruptcy judge has exclusive jurisdiction to hear applications for the continuation of current contracts . The interim juge cannot therefore be seized of such a request . The bankruptcy judge's jurisdiction extends to contracts of an administrative nature, where these are in progress on the day the debtor's insolvency procedure is opened . The bankruptcy judge also has jurisdiction to hear a dispute concerning the automatic termination of a current contract, even if it has been concluded by the delegatee of a public service and includes an authorization to occupy the public domain . However, its authorization is not required to waive the continuation of a current contract .

The bankruptcy judge's mission extends to the verification and admission of claims. He may decide, on the basis of a statement of valuation of assets and privileged and unsecured liabilities provided by the liquidator, whether to initiate or continue the verification of unsecured claims . Where it appears necessary to resume the verification of claims, it may set an additional time limit for doing so . Under the terms of Article L. 624-2 , the bankruptcy judge alone is competent to rule on the admission of a claim, even if a court has been seized of a dispute , provided that the non-performance or poor performance of the contract is not the subject of the dispute, that the debtor's repayment obligation is not questionable  and that the claim in question is not of a salary nature . It is up to the bankruptcy judge, who alone is competent to verify the existence of the conditions for the admission of a tax claim, to determine the event giving rise to the disputed surcharge claim .  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 procedure . Similarly, the court of appeal, which rules on a remedy brought against a judgment opening a court-supervised procedure following resolution of the receivership plan, cannot be directly seized of the admission of an undeclared claim to the liabilities of the receivership procedure, since it is subject to the procedure for verification and admission of claims specific to the liquidation procedure .

The powers of the bankruptcy judge also include the realization of assets. He may set the upset price and the essential conditions of sale of a debtor's immovable property  and, in certain cases, order the sale by amicable auction at the upset price he sets, or authorize the sale by mutual agreement at the price and under the conditions he determines . The bankruptcy judge may also order the sale by public auction, or authorize the sale by mutual agreement of the debtor's other assets at the price and under the conditions he determines, where this is likely to safeguard the debtor's interests .

Article R. 641-11 of the Commercial Code stipulates that the bankruptcy judge must rule by ordinance on complaints lodged against the acts of the liquidator. However, he exceeds his powers when he substantially modifies an ordinance relating to the transfer of shares in a company undergoing insolvency procedure, even though it has not been the subject of a remedy before the court . Similarly, the bankruptcy judge has no jurisdiction to rule on a remedy brought by the liquidator concerning the validity or opposability of an authorization by an investigating judge to seize the debtor's property under criminal law .

Lastly, the bankruptcy judge is responsible for drawing up a report for the court, which decides on any difficulties relating to the court-supervised liquidation on the basis of the report . This report does not necessarily have to be in writing  in the absence of provisions specifically prescribing such a formality, so that the court of first instance which opens a debtor's insolvency procedure is not obliged to provide 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, entails the annulment of the decision  but does not affect the referral to the court of first instance .

C. com., art. L. 621-9, applicable to the receivership procedure by reference to art. L. 641-11.

No legislative text applicable to judicial liquidation refers to art. L. 624-2 C. com. but art. R. 641-28 refers to art. R. 624-3 to R. 624-7 C. com. relating to the bankruptcy judge's competence to admit claims.

Cass. com., 27 October 2022, LawLex202200010013JBJ (LJ).

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

Cass. com. 6 December 2011, LawLex202200003978JBJ (S), holding that a bankruptcy judge who rules on the admission of such a claim has exceeded his powers.

Cass. com., 28 April 2004, LawLex202200011159JBJ (LJ).

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

Cass. com., 16 September 2014, LawLex202100001827JBJ (LJ).

C. com., art. L. 623-2, applicable to the receivership procedure by reference to art. L. 641-11.

C. com., art. L. 642-19. See for an application, Cass. com., 11 February 2014, LawLex202100005172JBJ (LJ), considering that such a transaction does not constitute a forced execution measure whose disputes would fall within the jurisdiction of the enforcement court.

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 (LJ), holding that the production of the bankruptcy judge's report constitutes a substantial formality, failure to observe which entails the nullity of the court's judgment; CA Nancy, 27 June 2012, LawLex202100006081JBJ (LJ), holding that the extension judgment rendered in the absence of the bankruptcy judge's report must be annulled for breach of substantial formality; CA Pau, 9 May 2016, LawLex202100006068JBJ (LJ).

Cass. com, 17 November 2015, LawLex202100005090JBJ (LJ) ; CA Aix-en-Provence, 6 March 2014, LawLex202100005088JBJ (RJ), 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 procedure, without mentioning, even in visa form, the presence of the bankruptcy judge at the hearing or the filing of his report, does not affect the regularity of the referral to 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., 22 October 1996, LawLex202100005167JBJ (RJ).

Bankruptcy Law

675. Role of the bankruptcy judge

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675. Role of the bankruptcy judge

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Les notions juridiques connexes

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