Bankruptcy Law

Where necessary, the bankruptcy judge may appoint a technician to carry out a specific assignment . This power is exclusive: the interim judge must declare himself incompetent to rule on any such request from the debtor company . At the same time, it is up to the bankruptcy judge to refer the matter to the court, at the debtor's request, for the purpose of replacing the expert .
The bankruptcy jud …

Designation of the organs of the procedure

Where necessary, the bankruptcy judge may appoint a technician to carry out a specific assignment . This power is exclusive: the interim judge must declare himself incompetent to rule on any such request from the debtor company . At the same time, it is up to the bankruptcy judge to refer the matter to the court, at the debtor's request, for the purpose of replacing the expert .

The bankruptcy judge has full powers to appoint a qualified person to carry out investigations into the causes of the company's insolvency , as well as facts likely to establish the company's managerial status and reveal management faults . Accordingly, a bankruptcy judge who appoints an expert to gather accounting and financial information on the causes of the failure of a previous procedure to suspend proceedings, on the terms and conditions of loans granted to the company by creditor banks, and on the evolution of these loans, is not exceeding his powers .

The expert report drawn up by the technician appointed by the bankruptcy judge does not constitute an investigative measure within the meaning of the Code of Civil Procedure , nor does it constitute the report of a judicial expert mission subject to the rules laid down by this code . If the mission entrusted to a technician does not therefore require permanent respect of the adversarial principle when performing the investigations, the association of the debtor or the manager with his operations is nonetheless imperative . According to the Court of Cassation, seized of a priority question of constitutionality, the provisions of Article L. 621-9(2) do not in themselves infringe the rights of the defense, the principle of contradiction or that of equality of arms . A fortiori, the report drawn up by the accounting firm appointed by the bankruptcy judge cannot contravene the adversarial principle, once it has been included in the debates and submitted to the free discussion of the parties .

Article L. 621-10 of the Commercial Code, applicable to the court-supervised liquidation by virtue of Article L. 641-1, II(6) also allows the bankruptcy judge to appoint between one and five auditors from among the creditors who so request. However, he is not obliged to appoint all the candidates, even if there are no more than five . The auditors assist the liquidator in his duties and the bankruptcy judge in his task of supervising the administration of the company . Judgments concerning the appointment of auditors may only be appealed by the public prosecutor, so that, except in the case of excess of power, a creditor may not challenge a judgment rejecting his request for appointment as auditor . Article L. 621-10 provides that auditors may be dismissed by the public prosecutor. The fact that this text does not provide for the various cases of dismissal does not concern the principle of intelligibility of the law, since only the absence of conditions for their appointment, or the interest in the smooth running of the insolvency procedure, can justify such a measure, following an adversarial debate which respects their rights and interests .

C. com. L. 621-9, para. 2, applicable to the receivership procedure by reference to art. L. 641-11.

Cass. com., 17 September 2013, LawLex202100005191JBJ (LJ).

Cass. com., 19 March 2002, LawLex202100005121JBJ (LJ).

Cass. com., 29 September 2015, LawLex202100002203JBJ (S).

Cass. com., 16 January 1996, LawLex202100002208JBJ (LJ).

Cass. com. 7 November 2018, LawLex202100002206JBJ (RJ); 16 March 2010, LawLex202100002202JBJ (LJ), holding that creditors do not have a remedy against the judgment rejecting their request to be appointed as auditors, since, unless there is an excess of powers, the appeal is reserved for the public prosecutor.

Cass. com., 21 October 2016, LawLex202100002204JBJ (S).

Cass. com., 6 October 2009, LawLex202100005120JBJ (LJ).

Cass. com., 15 May 2001, LawLex202100005146JBJ (LJ) ; 24 March 2004, LawLex202100005118JBJ (LJ).

Cass. com., 12 July 1993, LawLex202100005154JBJ (RJ).

Cass. com., 23 April 2013, LawLex202100005153JBJ (LJ).

Cass. com., 22 March 2016, LawLex202100001810JBJ (LJ).

Cass. com., 5 October 2022, LawLex202200008781JBJ (RJ) ; LawLex202200008780JBJ (RJ).

Cass. com., 1 February 2011, LawLex202100005177JBJ (LJ).

Bankruptcy Law

676. Designation of the organs of the procedure

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676. Designation of the organs of the procedure

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