Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

Pursuant to Article R. 151-1 of the Code of Civil Enforcement Procedures, when the judicial commissioner responsible for enforcing a writ of execution encounters a difficulty that hinders the progress of their operations, they must draw up a report and may, on their own initiative, refer the matter to the enforcement judge  by filing an application with the court registry, accompanied by the prese …

Exclusive jurisdiction of the enforcement judge

Pursuant to Article R. 151-1 of the Code of Civil Enforcement Procedures, when the judicial commissioner responsible for enforcing a writ of execution encounters a difficulty that hinders the progress of their operations, they must draw up a report and may, on their own initiative, refer the matter to the enforcement judge  by filing an application with the court registry, accompanied by the presentation of the writ, a statement of the difficulty that hindered the enforcement operation, and, if applicable, the documents that were disclosed to them . They must then inform the interested parties of the difficulty encountered and the place, day, and time of the hearing during which it will be examined. This information, which may be delivered either by verbal declaration recorded in the report or by registered letter with acknowledgment of receipt, serves as a summons to appear. The parties must also be informed of the provisions of Articles R. 121-6 to R. 121-10 and that a decision may be rendered in their absence. At the hearing, the judicial commissioner is heard in their observations .

This particular procedure does not allow the court to address the parties' disputes regarding the choice of enforcement measures, their respective legal regimes, or the writ of execution, but aims exclusively to identify and possibly resolve execution difficulties specific to the judicial commissioner's office. Therefore, the enforcement judge, who, when approached by a judicial commissioner regarding difficulties hindering a real estate seizure, rules on the validity of eviction operations conducted by the seizing creditor against an occupant of the premises in question, commits an abuse of power . Similarly, when approached under Article R. 151-1, the enforcement judge cannot address the parties' disputes concerning the choice of enforcement measures, their respective legal regimes, or the writ of execution, and in particular, cannot rule on a request for the lapse of the measure or on the involvement of law enforcement, or impose a penalty . The fear of a potential and future irregular or fraudulent behavior by the seized debtor, who has executed the court's decision by paying the amounts to which he was condemned into the creditor company's accounts, based on the fact that, as its director, he could later withdraw them, does not constitute an execution difficulty allowing the judicial commissioner to approach the enforcement judge with a request for deposit . However, a company's refusal to allow the judicial commissioner access to email accounts targeted by an order from the president of the Judicial Court constitutes an execution difficulty within the competence of the enforcement judge .

The judicial commissioner faced with a difficulty in enforcement must not carry out the measure to its conclusion, but must either refrain from acting or use the procedure provided for in Article R. 151-1 of the Code of Civil Enforcement Procedures, in order to obtain a decision from the enforcement judge . This is particularly the case in situations of uncertainty regarding the retroactive scope of an order concerning the recovery of arrears .

CA Saint-Denis de la Réunion, 8 July 2022, LawLex202300004528JBJ.

CA Fort-de-France, 4 April 2017, LawLex202300005036JBJ.

CA Dijon, 18 November 2014, LawLex202300004609JBJ.

CA Fort-de-France, 13 January 2015, LawLex202300005037JBJ.

CA Orléans, 11 December 2019, LawLex202300004610JBJ.

Cass. 1re civ., 22 March 2012, LawLex202200010420JBJ.

Pursuant to Article 503 of the Code of Civil Procedure, judgments can only be enforced against those to whom they are issued after they have been notified, unless the enforcement is voluntary. In the case of enforcement based solely on the original, its presentation serves as notification. It follows that in the context of seizure and sale, the order to pay for the purpose of seizure and sale and the attachent order (saisie-attribution) carried out against a seized debtor are null and void in the absence of service of the first-instance decision not vested with provisional enforcement, notwithstanding the service of the appeal judgment .

Furthermore, the judicial commissioner must draw up a report that contains, on pain of invalidity, the detailed designation of the seized assets . In fact, the vehicle registration numbers alone, which appear on the copy of the report of a seizure and sale, can easily and without any hesitation identify the seized cars . Moreover, the report of seizure and sale that only mentions the seizure of “a collection of books (five hundred units)” is insufficient since the document does not contain the detailed designation of the seized assets . However, the lack of a detailed description of a seized tractor in a seizure report (procès-verbal d'appréhension) is not sanctioned by the invalidity of the document and is in no way likely to cause harm to the seized debtor . The same applies in the context of a seizure by garnishment, where, on pain of lapse, the seizure is notified to the debtor by an act of the judicial commissioner within eight days and must contain, on pain of invalidity, a copy of the seizure report and the reproduction of the information communicated by the garnishee if the document was served electronically . Therefore, the seizure by attachment is void if it is neither proven nor claimed that the report was notified to the seized debtor within eight days . Conversely, the acting commissioner is not required to mention in the report of service of a decision that underpins a seizure by attachment, the identity of the persons with whom he verified the domicile of the recipient of the document .

Pursuant to Article 130 of the Decree of 31 July 1992, disputes regarding the seizable nature of assets included in the seizure are brought before the enforcement judge by the debtor or by the judicial commissioner acting as in matters of enforcement difficulties. When the exemption from seizure is invoked by the debtor, the procedure must be initiated within one month from the service of the seizure document. The creditor is heard or summoned. Consequently, an application for the release of a seizure and sale of the debtor's seized furniture, filed after the expiration of the one-month period from the service of the report, is inadmissible .

Finally, Article R. 151-1, para. 1 of the Code of Civil Enforcement Procedures provides that when the judicial commissioner responsible for the enforcement of a writ of execution encounters a difficulty that hinders the progress of their operations, he must record it in a report and may, on his own initiative, refer the matter to the enforcement judge. ,

Cass. 2e civ., 30 June 2022, LawLex202300004522JBJ.

Decree No 92-755 of 31 July 1992 establishing new rules relating to civil enforcement procedures for the application of Law No 91-650 of 9 July 1991 on the reform of civil enforcement procedures. Art. 92. 2°.

Cass. 2e civ., 30 September 1999, LawLex202300003124JBJ

Cass. 2e civ., 30 September 1999, LawLex202300003123JBJ.

CA Bordeaux, 25 March 2021, LawLex202300004248JBJ.

CA Paris, 10 November 2022, LawLex202300004854JBJ.

CA Caen, 8 June 2022, LawLex202300004806JBJ.

5. Civil Enforcement Procedures

66. Exclusive jurisdiction of the enforcement judge

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

66. Exclusive jurisdiction of the enforcement judge

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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