Appointment of an inspector
The Procedures guide allows entrepreneurs and decision-makers to have a reliable, precise and up to date overview of legal procedures and measures concerning commercial formalities to be undertaken. It is broken down into 6 sections in which you can find information and documentation required for formalities with Registry Offices at the Commercial Courts.
Appointment of an inspector
The controller assures the transparency of the proceedings. In effect, such is an assistant called upon to intervene, even without being a receivership professional.
This is the creditor named by the bankruptcy judge to assist in his role for supervision of the company's administration and assistance to the creditors' representative in his functions.
When several controllers are appointed, at least one of them must be selected from among the secured creditors, and another from among the unsecured creditors.
Texts: Articles L. 621-13, L. 621-27, L. 623-9 of the Commercial Code; Article 226-13 of the Penal Code; Articles 25 and 31 of Decree No. 85-1388 of 27 December 1985.
The controller's functions
The law grants him certain authority for the exercise of the functions reserved to him.
Such are free of charge, and involve assisting the judicial representative in his functions and the bankruptcy judge in his role of supervision of the company's administration, and confer a general informational right over the execution of the proceeding (events and documents transmitted) unavailable to the other creditors.
He can access all the documents sent to the administrator and to the judicial representative.
The controller may make a referral to:
- the bankruptcy judge who will ask the court to decide on the replacement or addition of a procedural body,
- the court for an order for the activity's termination and a ruling for judicial liquidation,
- the judicial representative to assist in the verification of liabilities.
Exercise of functions
His functions may be carried out either personally or by one of his clerks or by a lawyer.
Neither the controller or his representative may be related or allied through the 4th degree, including the company owner and officers of the legal entity.
For non-disclosure of privileged information of which he may be the recipient he is bound to professional secrecy "under the penalty of Art. 226-13 of the Penal Code".
He is consulted, informed and summoned to the court hearings in order to be heard.
He can be dismissed by decision of the court.
He can be held liable in case of gross negligence.
To ensure the principle of equality for controllers submitting a candidature, no controller can be appointed before expiration of a period of twenty days from the date of the opening of the proceeding.
The bankruptcy judge shall rule on each creditor's request within ten days from its filing.
The functions of the controller are exercised from the date of his appointment until the day when judgements are final, either by a decision establishing a continuation plan, or (in the case of a transfer plan or mandatory liquidation), the decision declaring the closure of the proceedings, other than resignation or dismissal.
Referral to the bankruptcy judge
The request towards appointment in the capacity of controller is made by declaration to the court registry office.
It is presented to the bankruptcy judge who rules means of court order.
The order ruling on the request for the appointment of a controller is filed in the registry office of the commercial court. Afterwards, notice thereof is made to the persons appointed in the order. Upon his request, such orders are communicated to the to the public prosecutor.
Orders relating to appointment or replacement of controllers are only subject to appeal by the public prosecutor (Article L. 661-6 of the Commercial Code).
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