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The enforceability of the executive director's resignation against the collective procedure

Publié le : 08/06/2015 08 juin juin 06 2015
2015
2015 / Juin

The enforceability of the executive director's resignation against the collective procedure

Civil Procedure and Collective Procedure
Source: Supreme Court, Commercial Chamber, May 12th 2015, n° 14-12.483


The president of a simplified joint-stock company gives his resignation on December 9th 2011, on the day when he was summoned to a meeting in front of the president of the Commercial Court, who was to decide on the opening of proceedings for the bankruptcy of the society, at a court hearing on December 15th 2011.
By a judgement dated February 21st 2012, the Commercial Court has, with no consultation, opened proceedings for the bankruptcy of the said society.
The former president, who contested the date chosen for the suspension of payments, instituted himself third-party in the proceedings against this judgement.
The Court of Appeal declared his request as third party inadmissible, considering that the resignation had not been subject to any legal advertising formalities, and in consequence, he was still related to the society, including the Commercial Court, its legal representative at the date of the opening judgement.
Therefore he was not third-party to the proceedings.
In accordance with the article 583 of the Civil Procedure Code, the Supreme Court has dismissed the decision and considered on the contrary that, «as M. Y. was no longer executive director, due to his resignation, which happened on December 9th 2011, it did not matter whether this resignation had been subject to legal advertising measures or not, the result was that he was not part of the society's legal representatives at the time of the opening of the first instance proceedings in front of the Commercial Court, hence the Court of Appeal has violated the above mentioned article.»
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