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

As a key player in civil enforcement proceedings, the creditor can, under Article L. 111-1, para. 1, of the Code of Civil Enforcement Procedures, “compel the defaulting debtor to fulfill their obligations [...).” Such a prerogative implies that the creditor must justify his or her right to the claim, their capacity, and their standing to act.
A person who pays undue amounts to their co-contractor  …

Creditor's ability to implement enforcement measures

As a key player in civil enforcement proceedings, the creditor can, under Article L. 111-1, para. 1, of the Code of Civil Enforcement Procedures, “compel the defaulting debtor to fulfill their obligations [...).” Such a prerogative implies that the creditor must justify his or her right to the claim, their capacity, and their standing to act.

A person who pays undue amounts to their co-contractor before being subject to a third-party notice from a creditor of the latter must be classified as a creditor . A company that is the assignee of numerous claims must justify its status as a creditor with respect to a particular debtor in order to initiate a seizure and sale procedure against them . The status of creditor is assessed at the time the measure is implemented. A bank that, at the overbidding hearing, acts as the pursuing creditor and invokes the lapse of the payment order it issued, retains its status as the pursuing creditor despite the assignment of its claim to a third party .

According to Article L. 111-9, “unless otherwise provided, the exercise of an enforcement measure and a protective measure is considered an act of administration.” Thus, a capable adult, an emancipated minor, an adult under judicial protection, and an adult under guardianship can proceed with the enforcement of their claim. However, a non-emancipated minor and an adult under guardianship must be represented by their guardian , who alone carries out protective acts or compulsory enforcement measures on movable property . The family council makes decisions and gives the guardian the necessary authorizations for managing the minor's property . Furthermore, in accordance with the law of 5 March 2007 , “any person unable to attend to their interests alone due to a medically certified impairment, either of their mental faculties or of their physical faculties preventing the expression of their will, may benefit from a legal protection measure [...]”. The text aims to protect the fundamental rights and dignity of the person. A person placed under judicial protection can initiate an enforcement or protective procedure , unless a representative has been appointed by the judge to perform one or more specific acts necessary for managing the protected person's assets . The real estate seizure procedure is unique compared to other procedures because the issuance of the order to pay is not merely an act of administration, but of disposition . Consequently, the mayor of a municipality can only make a declaration of overbidding with the authorization of the municipal council .

The law on insolvency proceedings establishes another form of creditor oversight, the intensity of which varies depending on the severity of the debtor's difficulties. The safeguard procedure  is the least intrusive form of this oversight. The management of the undertaking remains in the hands of the manager , and the appointment of an administrator is only required for the largest companies . Even when one is appointed, their role is generally limited to assisting and supervising the debtor . However, the administrator is authorized to perform all acts necessary to preserve the rights of the undertaking against its debtors, to maintain production capacities, and to register mortgages, pledges, liens, or privileges in the name of the undertaking that the debtor may have neglected to take or renew . Certain acts also require the authorization of the judicial commissioner. This applies to acts of disposition unrelated to the ordinary management of the undertaking , such as proceeding with a real estate seizure. The judicial reorganization procedure , which involves a deteriorated financial situation characterized by a state of cessation of payments , results in enhanced powers for the administrator. In this procedure, the administrator may be entrusted not only with an assistance mission but also with the task of solely managing the undertaking , either entirely or partially. Finally, the judicial liquidation procedure , available to any debtor in cessation of payments whose recovery is clearly impossible, represents the ultimate stage of dispossession of the debtor's powers. The debtor is “divested” of the management and disposition of their assets involved in the professional activity, even those acquired by any means, until the judicial liquidation is closed. The rights and actions of the debtor concerning their assets are exercised throughout the duration of the judicial liquidation by the liquidator .

Finally, regarding standing, it is accepted that a person who has intervened as a civil party on behalf of victims of criminal acts before the criminal court and who provides proof of their appointment by the guardianship judge as an agent of the guardianship management service, has standing to carry out enforcement actions intended to recover the sums awarded to the victims based on the criminal decision . However, the creditor who owns a commercial premises can no longer issue a notice to vacate to the tenant after selling the property, as this sale deprives them of their standing .

Cass. 2e civ., 18 October 2018, LawLex202200010963JBJ.

Cass. 2e civ., 21 February 2013, LawLex202200010965JBJ.

Cass. 2e civ., 21 March 2013, LawLex202200010185JBJ.

Cass. 2e civ., 10 February 2005, LawLex202200010063JBJ.

CA Aix-en-Provence, 2 July 2010, LawLex202300001237JBJ.

Decree No 2008-1484 of 22 December 2008 relating to the management acts of the assets of persons placed under curatorship or guardianship and adopted pursuant to Articles 452, 496, and 502 of the Civil Code.

L. 2007-308 of 5 March 2007 on the reform of the legal protection of adults.

5. Civil Enforcement Procedures

5. Creditor's ability to implement enforcement measures

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5. Creditor's ability to implement enforcement measures

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