Collection of overdue payments in France

Author : Pauline THIBOUT from CAP RECOVERY.


Once a court judgment requiring the debtor to pay has been issued, if the debtor does not pay voluntarily, it is time to proceed to forced collection, the second step of judicial collection (the first being to get the court ruling).
Le recouvrement forcé obéit à des règles spécifiques. Plusieurs personnes sont susceptibles d’intervenir, de façon systématique ou plus exceptionnelle.

The commissioner of justice

He is the only person who can carry out a forced execution, having previously served as a bailiff. The installation of justice commissioners is governed; they are appointed by the Keeper of the Seals and take an oath. These rules ensure the integrity of this professional, who is accountable for the implementation.

The competence of the justice commissioners is regulated, both materially and geographically.

Materially, the activities of the commissioners of justice are provided for by the ordinance of November 2, 1945 n ° 45-2592 which provides:

"The bailiffs are the ministerial officers who have the sole authority to serve deeds and writs, to make the notifications prescribed by the laws and regulations when the mode of notification has not been specified, and to bring court decisions, as well as deeds or titles, to execution."

Bailiffs can also conduct amicable or judicial debt recovery and, in areas where there are no established judicial auctioneers, judicial or voluntary public auctions and sales of furniture and tangible personal effects.They can draw solely material conclusions when called upon by justice or at the request of persons, excluding any opinion on the possible repercussions of facts or law. Unless shown otherwise, these conclusions are legitimate until proven otherwise, except in criminal cases where they have the value of mere information. Bailiffs may also take preventative actions following the opening of a succession, according to the provisions of the civil process legislation. They may be appointed on a regular basis as liquidators in specific judicial liquidation procedures or as assistance to the judge in the context of professional recovery operations, according to the conditions set out in Title IV of Books VI and VIII of the Business Code.

Bailiffs provide personal service to courts and tribunals. They may also carry out certain activities or functions on an ancillary basis. The list of these activities and functions and the conditions under which they are authorized to perform them are, subject to special laws, laid down by decree in the Conseil d'Etat.

He is responsible for advising the creditor on the selection and appropriateness of enforcement methods. He is required to notify the debtor of the actions taken.

Territorial jurisdiction is exercised by the Commissaires de Justice:

  • For monopolistic acts (service of documents, enforcement measures): the Court of Appeal has authority. A commissioner of justice situated in Grenoble, for example, will be competent in the departments under the jurisdiction of the Court of Appeal of Grenoble, namely Isère, Drôme, and Hautes-Alpes. A Lyon-based commissioner will be competent in the departments under the jurisdiction of the Court of Appeal of Lyon, namely Rhône, Ain, and Loire.

  • For non-monopoly activities (recovery, findings): jurisdiction is national.

The tiers

Third parties are persons outside the creditor/debtor relationship, i.e., all those who are not in a direct legal relationship with one or other of the parties and who are called upon to provide their assistance, at one time or another, to the act of execution.

As an example, consider the following:
  • Locksmiths, movers, witnesses, mechanics, and so on must attend seizure operations and sign the judicial commissioner's minutes.
  • Persons who are likely to inform the bailiff about the personal situation of the debtor (employment, address, properties, accounts) and whose collaboration is required (public administrations, employers, etc.).
Third parties are bound by a general duty to cooperate; if they fail to do so without a legitimate reason, they may be forced to do so, if necessary, under penalty of a fine, without prejudice to damages.
A special regime applies to garnishees. A garnishee is a person who is a priori a creditor of the debtor and in whose hands a seizure is carried out (bank, employer, tenant, etc.). These third parties are required to respond to the seizure deed, specifying the extent of their obligation to the debtor. In the event of an incomplete or misleading declaration, the garnishee incurs liability and may be ordered to pay damages..

The enforcement judge

Article L. 213-6 of the Code of Judicial Organization provides that "The enforcement judge has exclusive jurisdiction over difficulties relating to enforceable titles and disputes which arise on the occasion of the forced execution, even if they relate to the merits of the law, unless they fall outside the jurisdiction of the courts of the judicial order".

Under the same conditions, he authorizes protective measures and hears disputes relating to their implementation. Subject to the same conditions, the enforcement judge hears property seizure proceedings, disputes arising in connection therewith, and claims arising from or directly related to such proceedings, even if they concern the merits of the case, as well as the ensuing procedure for the distribution of funds.

He hears, subject to the same reservation, claims for compensation based on the harmful execution or non-execution of forced execution measures or protective measures. code of civil enforcement procedures.

The Enforcement Judge is also competent, in a shared manner with the trial judges, to liquidate a penalty payment and to grant payment terms. The territorially competent enforcement judge is that of the debtor's domicile or that of the place of execution of the measure.

The public prosecutor's office

For many years, the role of the Public Prosecutor's Office has been to "hold the hand" in the enforcement of judgments, particularly in civil matters, i.e. to ensure, where necessary, that they are properly enforced by the parties concerned.

The Public Prosecutor can order all the judicial commissioners in his or her jurisdiction to lend their ministry if a commissioner refuses a case without a legitimate reason. The Public Prosecutor's Office is the supervisory authority for the judicial commissioners, who must therefore comply with its injunctions.

Conversely, if the commissaire de justice becomes the victim of an offense during the course of his or her assignment, he or she can report it directly to the public prosecutor's office so that proceedings can be initiated.

The forces of law and order

The police or gendarmerie can be called in to assist the commissaire de justice. They can intervene in two ways: to assist the commissioner during operations, or to lend a hand. In the first case, the police force will simply "act as a presence", primarily fulfilling a protective role for the commissaire de justice. In the second case, the police force will have an active role to play in the execution process.

This is mainly the case in the context of rental evictions, where eviction is carried out "by force". In this case, the court commissioner must make a formal requisition, attaching a report detailing the difficulties encountered in carrying out the requisition.

As a result, the commissioner of justice is the dominant figure in enforcement and compelled collection. He can enlist the assistance of the other parties involved, but he is the conductor of the orchestra, responsible for the procedures followed, and guarantor of the parties' rights.

 

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