OPENING OF THE PREVENTIVE REGULATION
LexInter | March 11, 2019 | 0 Comments

OPENING OF THE PREVENTIVE REGULATION

Article 5
The competent court is seized by request of the debtor setting out his economic and financial situation and presenting the prospects for the recovery of the company and the discharge of liabilities.
The request is addressed to the President of the competent court and filed with the registry of this court against receipt. It indicates the claims for which the debtor requests the suspension of individual proceedings.
No request for preventive settlement may be presented by the debtor before the expiration of a period of five years following a previous request resulting in a decision for preventive settlement.
Article 6

At the same time as the request, the applicant for a preventive settlement must file:

1 ° an extract of registration in the trade and movable property credit register;

2 ° the summary financial statements comprising, in particular, the balance sheet, the income statement, a financial table of resources and uses;

3 ° a cash flow statement;

4 ° the quantified statement of claims and debts with indication of the name and domicile of the creditors and debtors;

5 ° the detailed statement, assets and liabilities, of the personal and real guarantees given or received by the company and its managers;

6 ° the inventory of the debtor’s property with an indication of the movable property subject to claim by their owners and those affected by

7 ° the number of workers and the amount of wages and salary costs;

8 ° the amount of turnover and taxed profits for the last three years;

9 ° the name and address of the staff representatives;

10 ° in the case of a legal person, the list of the members jointly responsible for its debts, with an indication of their names and addresses as well as the names and addresses of its officers.

All these documents must be dated, signed and certified true and true by the applicant.

In the event that one of these documents cannot be provided, or can only be provided incompletely, the request must contain an indication of the reasons for this impediment.

Article 7

At the same time as the deposit provided for in article 6 above or, at the latest, within thirty days following it, the debtor must, on pain of inadmissibility of his request, file an offer of preventive composition. specifying the measures and conditions envisaged for the recovery of the company, in particular:

– the terms of continuation of the company such as the request for deadlines and discounts; the partial transfer of assets with a precise indication of the assets to be transferred; the sale or lease-management of a branch of activity forming a business; the sale or lease-management of the entire company, without these terms being restrictive and mutually exclusive;

– the persons required to carry out the composition and all the commitments entered into by them and necessary for the recovery of the company; the procedures for maintaining and financing the business, for settling liabilities arising prior to the decision provided for in Article 8 below, as well as, if applicable, the guarantees provided to ensure their execution ; these commitments and guarantees may consist, in particular, in the subscription of an increase in the share capital by the former partners or by new ones, the opening of loans by banking or financial establishments, the continuation of the execution of contracts concluded previously upon request, the provision of sureties;

– redundancies for economic reasons which must occur under the conditions provided for by the provisions of labor law.

– the replacement of directors.

Article 8
As soon as the proposal for a preventive arrangement is filed, it is sent, without delay, to the President of the competent court, who renders a decision to suspend individual proceedings and appoints an expert to report to him on the economic and financial situation of the company. the company, the prospects for recovery taking into account the delays and discounts granted or likely to be granted by the creditors and all other measures contained in the proposals for the preventive composition.

The expert thus appointed is subject to the provisions of Articles 41 and 42 of this Uniform Act.

The expert is informed of his mission by registered letter or by any means leaving a written record of the President of the competent court or of the debtor within eight days of the decision to suspend individual proceedings.

Article 9
The decision provided for in article 8 suspends or prohibits all individual proceedings aimed at obtaining the payment of claims designated by the debtor and arising prior to the said decision.

The suspension concerns both the means of execution and the precautionary measures.

It applies to all unsecured creditors with general privileges or special real securities such as, in particular, a special lien on movable property, a pledge, pledge or mortgage, with the exception of salary creditors.

The suspension of individual proceedings does not apply to actions aimed at the recognition of rights or contested claims or to cambiary actions directed against signatories of commercial paper other than the beneficiary of the suspension of individual proceedings.

The time limits given to creditors on pain of forfeiture, prescription or termination of their rights are, therefore, suspended for the duration of the suspension of the proceedings themselves.

Article 10

Unless remitted by the creditors, the legal or contractual interest as well as the default interest and the surcharges continue to run but are not payable.

Article 11

Unless there is a reasoned authorization from the President of the competent court, the preventive settlement decision prohibits the debtor, on pain of unenforceability:

– from paying, in whole or in part, the debts arising prior to the decision to suspend individual proceedings and covered by it;

– to make any act of disposal foreign to the normal operation of the company, nor to grant any security.

The debtor is also prohibited from paying off sureties who have paid debts arising prior to the decision provided for in article 8 above.

Article 12

1. The expert assesses the debtor’s situation.

To this end, he may, notwithstanding any legislative or regulatory provision to the contrary, obtain communication from the auditors, accountants, staff representatives, public administrations, social security and welfare organizations, banking or financial establishments, as well as the services responsible for centralizing banking risks and payment incidents, information likely to give it exact information on the economic and financial situation of the debtor.

2. The expert is responsible for reporting any breaches of article 11 above to the competent court.

3. The expert hears the debtor and the creditors and lends them his good offices to reach an agreement on the modalities of reorganization of the company and the discharge of its liabilities.

Article 13
The appointed expert submits to the registry, in duplicate, his report containing the preventive composition proposed by the debtor or concluded between him and his creditors, within two months of his referral, at the latest, unless authorized by the President of the court. competent to extend this period of one month.

The expert is required to respect the time limit provided for in the previous paragraph, under penalty of incurring liability with the debtor or creditors.

A copy of the report is sent to the representative of the Public Prosecutor’s Office by the Chief Registrar.

Article 14
Within eight days of the filing of the report, the President seizes the competent court and summons the debtor to appear before this court to be heard in a non-public hearing. He must also summon to this hearing the expert rapporteur as well as any creditor he deems useful to hear.

The debtor and, possibly, the creditor (s) are summoned by registered letter or by any means leaving a written record, at least three days in advance.

 

Article 15
The competent court rules in a non-public hearing.

1. If it notes the cessation of payments, it pronounces, of its own motion, and at any time, the receivership or the liquidation of assets without prejudice to the provisions of article 29 below.

2. When the situation of the debtor justifies it, it renders a preventive settlement decision and approves the preventive composition by noting the deadlines and postponements granted by the creditors and noting the debtor of the measures proposed for the reorganization of the company. The deadlines and discounts granted by creditors may be different.

The competent court approves the preventive composition if:

– the conditions for the validity of the composition are met;

– no reason based on the collective interest or public order seems likely to prevent the arrangement;

– the composition offers serious possibilities for reorganizing the business, settling liabilities and sufficient performance guarantees;

– the agreed time limits do not exceed three years for all creditors and one year for salary creditors.

In the event that the preventive composition includes a request for a delay not exceeding two years, the competent court may make this period enforceable against creditors who have refused any delay and any postponement unless this period endangers the business of these creditors. .

Wage creditors may not grant any postponement or be imposed a time limit that they do not

3. If the competent court considers that the debtor’s situation does not fall under any bankruptcy proceedings or if it rejects the preventive composition proposed by the debtor, it shall annul the decision provided for in article 8 above. This cancellation returns the parties to the state prior to this decision.

4. The competent court must rule within one month of its referral.

 

Article 16
The decision of the competent court approving the preventive arrangement puts an end to the mission of the expert rapporteur, subject to the provisions of article 17 below. However, the competent court may appoint a liquidator and controllers responsible for supervising the execution of the preventive composition under the same conditions as those provided for the judicial reorganization arrangement.

It also appoints a Judge Commissioner.

 

Article 17
The preventive settlement decision is published under the conditions provided for in Articles 36 and 37 below.

The advertising is verified by the expert under the conditions provided for in article 38 below.

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