The creditor does not find a right of action to individual
To find out more business Law - commercial Law - competition Law - european business Law - Firms in difficulty - the Effects of trade - payment Instruments and credit - distribution Law - financial markets Law judicial Law - civil Procedure - procedural Law - Arbitration - enforcement - debt Recovery - judicial Institutions of administrative proceedings - administrative Contracts - administrative Institutions - local Authorities, administrative Law, property - Based public-private international Law - international economic Law - International Litigation - international Law - public International Relations - English Law - american Law - belgian Law - German Law - canadian Law - Swiss Law - Cameroonian law - Law senegalese Law in côte d'ivoire - OHADA Link between collective proceedings and law enforcement date back to the roman lawFor a long time the role of the enforcement law: resolving conflict between creditor and debtor, for a long time, bankruptcy law, reserved to the traders, for a debtor civilian, law enforcement, a debtor trader, procedure of bankruptcy. With changes in the law, we will in another sense: the collective procedures have been extended beyond the limited domain of the law and commercial activity of the traders, extended to all firms and inspired the legislator in the framework of the over-indebtedness of individuals. Another factor, extension possible only by change of the purposes of the law of collective proceedings, the old purpose: to pay the creditor, and today purpose of any collective proceedings is to treat the indebtedness of the debtor and try to resolve, most often by deletion of the debt. Differences make appear a character of the right of execution. Collective procedure tends to submit the entire set of creditors to a discipline of collective, they will have to bear collectively a plan, far from the rule of the price of the race. The enforcement law was intended to apply to all debtors, the insolvency law has today the same purpose.
There are two bankruptcy procedures: those applicable to companies under the bankruptcy law, applicable to individuals who fall under the law of the conso. From act twenty-six July there are court procedures or judicial: the backup, legal redress and liquidation judicial.
Two criteria: These procedures apply to all persons exercising an independent professional activity and to all natural and legal persons of private law. The central criterion of this procedure is organized around the notion of cessation of payments: a debtor who can no longer make has to meet current liabilities from available assets. The first two tend to get a plan to restore the asset liquidation tends to liquidate the assets and assign the assets to the creditors. Statistically almost all liquidations will lead to a lack of assets, in this case, the law organizes the clearing of debts. These proceedings are open to the debtor in good faith, unable to pay their non-professional debts due and also payable, this is no longer the same liability or the same debts.
The two main categories of procedure: procedure over-indebtedness in the strict sense, have a non-contentious character, take place before the commission of over-indebtedness.
Other category: collective proceedings of a judicial nature: procedure of personal recovery, allows the judge to impose an erasure of the debts of the debtor, a debtor's discharge. For companies in difficulties Before the opening of collective proceedings, a suspect period can be set by the court which will lead to the application of nullity of the suspect period, the opening of collective proceedings establishes the procedures for implementing The principle: the court which initiated the collective proceedings can be seen that the cessation of payments by the debtor pre-existed before the judgment opening the court can be traced back in time to the date of cessation of payments.
Suspect period will allow control of the acts performed by the debtor in cessation of payments, will enable the eu court annul the acts of the debtor during this period. Optional: leave it to the discretion of the judge, but it is necessary that the other party to the act has had knowledge of cessation of payments at the time the act was done. In the case of the Nullity of compulsory law has referred to the precautionary measures taken by the creditor during the suspect period, unless the act of seizure or the registration of provisional seizure has been effected prior to the date of cessation of payments. If you begin the procedure, conservatory, before cessation of payments we may continue this procedure during the suspect period.
For the Nullity of the optional: it was introduced by act, of the acts which constitute implementing measures, are referred to by the text entered to award, notice to third party holder, and the opposition.
the judgment opening the insolvency proceedings shall suspend or prohibit the civil procedures of execution and the distribution procedures that do not have a link to the day of the opening. General idea of fixing the debtor's assets to allow the organs of the collective procedure to allocate the assets in accordance with the objectives of the procedure al. This rule applies to all claims arising prior to the judgment opening, but since act applies to creditors post as soon as their claims are not helpful to the procedure al. Conversely, only creditors whose rights are born after the judgment opening and whose claims are useful, retain the right to conduct enforcement proceedings for the recovery of their debt. These are the receivables that are assets of the debtor, ex-seizure, but eviction remains outside of the device. Stop during any collective proceedings that may have differing outcomes. Invalidity in the event of recovery or backup, after the normal: the adoption of a plan to allow the continuation of the business, which often involves a scaling of debts. Therefore, creditors will be required to comply with these deadlines, does not allow for a new execution procedure.
If deadline not complied with by the debtor, only the commissioner in the execution of the plan, may exercise any enforcement procedure against the debtor.
In case of liquidation, there is closure of the proceedings by extinction of the liability, the more often this procedure leads to a judgment of closure due to insufficient assets, the judgment does not recover to the creditors their right to sue individually. judgment stops the registration of the securities against the debtor, in principle, from the judgment opening not possible to grant a safety precaution.
In the matter of interim measure, we take a provisional registration which becomes final as soon as the creditor obtains the writ of execution, final registration, retro is, at the date of provisional registration, so it's no longer forbidden to practice after the judgment opening, it just has to be registered prior to the judgment opening.
The are the organs of the collective proceedings to pay to the caisse des dépôts et consignations, are elusive.
When the debtor is a legal person, it is common for the officer to be surety of the legal person.
Such a leader is called to seek the collective proceedings on behalf of the company. If the director can be sued as a guarantor, he will be reluctant to request the opening of proceedings al. To encourage these leaders to declare quickly the difficulties of the company, the law has provided for a suspension of suits against purchasers of collateral personal against the debtor, the principle: the suspension lasts until u judgment which adopts the recovery plan, or backup, or until the judgment of liquidation. Amicable procedures: execution procedures have the right to be adopted as the decision of the commission of over-indebtedness. The restoration procedures personally without a liquidation procedure opened when the debtor's assets are not recoverable. This procedure is open, on the recommendation of the commission of over-indebtedness, therefore in principle from the admissibility decision, the enforcement measures are suspended. Opens not a decision of the judge, which makes enforceable the decision of the commission, the procedure leads to an erasure of the debt personally from the debtor, as well as its guarantee commitments. Recovery custom with winding up by the court, there is a judgment opening pronounced by the court of first instance, judgment will bring judgment execution procedures. This procedure will lead to a judgment similar to the judgment of closure for inadequacy of assets, with effacement by the judge of everything that cannot be recovered, (ex: how to make a sheet stop or a summary note). The site is useful to students, but also professionals in law, a lawyer or a lawyer.
