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

Article L. 153-1 of the Code of Civil Enforcement Procedures sanctions the State's refusal to assist in a measure of enforcement through an action for damages. Any decision of refusal by the competent authority must be justified . Failure to respond within a two-month period is equivalent to a refusal . This refusal is communicated to the creditor by the judicial commissioner .
Not every refusal b …

Conditions for refusal

Article L. 153-1 of the Code of Civil Enforcement Procedures sanctions the State's refusal to assist in a measure of enforcement through an action for damages. Any decision of refusal by the competent authority must be justified . Failure to respond within a two-month period is equivalent to a refusal . This refusal is communicated to the creditor by the judicial commissioner .

Not every refusal by the State is wrongful. The substantive and formal conditions for resorting to law enforcement may not be met, or the measure requested may prove, given the particular circumstances of the case, to be disproportionate. The State may, in fact, consider that the involvement of law enforcement to ensure the execution of a decision may pose a danger to order and security. This is the case in the presence of the risk of serious disturbances that would be caused by the eviction of numerous indigenous people from territories they consider themselves legitimate occupants of, since time immemorial . The protection of public order takes precedence over the creditor's right to pursue. The refusal of law enforcement assistance by the prefect is also justified when the eviction of about fifty people, including thirty children, for whom no solution, even temporary, for rehousing can be offered, is likely to create serious disturbances to public order . In addition to the protection of public order, the State now invokes, to justify a refusal of assistance, the risk of harm to human dignity. The prefect may refuse law enforcement assistance when the eviction in question concerns an eighty-three-year-old person, without a rehousing solution and with limited resources .

On the other hand, the fact that the occupant of the premises has been designated as a priority and in need of urgent rehousing by a decision of the departmental mediation commission, or that a decision by the juvenile court has granted them the right to host their daughter two weekends a month, does not constitute grounds to justify the refusal of law enforcement assistance. Similarly, the prefect's refusal to provide law enforcement assistance to enforce a court decision ordering an eviction cannot be based on the fact that the property is occupied by persons other than those targeted by the decision, as it necessarily extends to all occupants under their authority. The litigant who is denied assistance may apply to the interim relief court to challenge the prefect's decision. Indeed, under the first paragraph of Article L. 521-1 of the Code of Administrative Justice, when an administrative decision is subject to an application for annulment or modification, the interim relief judge, upon request, may order the suspension of the execution of this decision, or some of its effects, when urgency justifies it and a ground is presented that creates, in the current state of the investigation, a serious doubt as to the legality of the decision. The condition of urgency is strictly assessed: it must not have been created by the creditor who knowingly took the risk of purchasing a squatted property to renovate it.

Whether the refusal is justified, and therefore not wrongful, or illegal, the State may incur liability on the basis of the breach of equality of citizens before public burdens. The litigant who has been unable to enforce an eviction order is entitled to seek compensation from the State for the harm caused by the deprivation of full and unlimited enjoyment resulting from the refusal to provide law enforcement assistance in the general interest . The action is brought before the administrative court in the jurisdiction where the prefectural authority that refused its assistance is located.

CE, 30 November 1923, LawLex202300002879JBJ.

CE, 8 February 2012, LawLex202300001716JBJ.

CE, 10 October 2003, LawLex202300001720JBJ. - Cf. CE, 30 June 2010, LawLex202300001717JBJ, considering that the decision of the prefect to grant the assistance of law enforcement does not create serious doubt as to its legality, even if the decision might contravene the Law of 5 March 2007 establishing the enforceable right to housing, or if, due to the lack of rehousing solutions, the social situation of the occupants would be made difficult.

CE, 30 November 1923, LawLex202300002879JBJ, previously cited.

5. Civil Enforcement Procedures

48. Conditions for refusal

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48. Conditions for refusal

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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