The procedure has the reputation of being the most complex and difficult to implement civil enforcement procedure in the Code of Civil Enforcement Procedures. Nonetheless, it shares several characteristics common to all civil enforcement procedures.
The notion of instance
The concept of proceedings is described in articles 1 to 3 of the Code of Civil Procedure, which are inserted under the heading "Proceedings". Section I: The proceedings Chapter I: The guiding principles of the trial.
Article 1 states that "Only the parties initiate proceedings, except where the law provides otherwise. They are free to terminate the proceedings before they are extinguished by the effect of the judgment or by virtue of the law.
Article 2 states that "The parties shall conduct the proceedings in accordance with their obligations. It is their responsibility to carry out the procedural acts in the required form and within the required time limits".
Finally, Article 3 states that "The judge shall ensure that the proceedings run smoothly; he shall have the power to set time limits and order the necessary measures.
The concept of proceedings is traditionally described by legal writers as all the developments that take place between the commencement of proceedings and the obtaining of a decision.
Since the parties' respective claims are settled in the course of the proceedings, their lack of interest in the proceedings is sanctioned by the lapse of proceedings, which occurs when they fail to take any action for at least two years (article 386 of the code of civil procedure).
Stoppage of proceedings in civil enforcement proceedings and seizures of immovable property
Civil enforcement procedures are by default not considered as proceedings. Their purpose is to compel the defaulting debtor to fulfil his obligations to the creditor (article L. 111-1, paragraph 1, of the Code of Civil Enforcement Procedures). They are therefore not between a plaintiff and a defendant, but between a creditor and a debtor.
As they are not proceedings, they do not incur the sanction of the lapse of proceedings (Cass. civ., 2nd, 24 March 2005, no. 03-16.312, published in the Bulletin).
However, the property seizure procedure is not a civil enforcement procedure like any other. It necessarily gives rise to the service of a writ of summons, which will give rise to proceedings.
This means that in the case of a property seizure, the relationship between the parties arises from the service of the summons at the orientation hearing.
This is why the Court of Cassation regularly uses the expression "instance" with regard to seizures of property.
For example, in relation to the interruption of a limitation period: "And whereas, having recalled that, under article 2242 of the Civil Code, the interruption of the limitation period resulting from the application to the court produced its effects until the proceedings were extinguished, the Court of Appeal, which correctly held that the proceedings initiated by the referral to the enforcement judge that gave rise to the referral judgment of 17 December 2009 had only been extinguished by the order of 31 October 2012 approving the proposed distribution of the sale price of the property, correctly deduced that the action for attachment of wages initiated on 24 October 2013 was admissible; " (Cass. civ., 2nd, 6 Sept. 2018, no. 17-21.337, published in the Bulletin).
Lastly, under the old text, it had been held that incidents of proceedings could give rise to an expiry of the time limit (Cass. civ., 2nd, 6 Feb. 1991, no. 89-21.371). This solution is logical, since it corresponds to the idea that the purpose of the incidental action is to settle a dispute, i.e. to settle opposing claims.
Withdrawal of proceedings for seizure of property
If the creditor withdraws, the execution judge loses jurisdiction and is no longer competent to rule on disputes arising from the seizure of immovable property and to rule on counterclaims arising from or relating to these proceedings (Cass. civ., 2nd, 11 Jan. 2018, no. 16-22.829, published in the Bulletin).
In this case, the debtor had accepted the bank's withdrawal from the proceedings, but maintained its counterclaims, arguing that the withdrawal was only perfect if accepted by the defendant (article 395 of the code of civil procedure).
The Court of Cassation did not follow his reasoning, enshrining the rule that the disappearance of the enforcement remedy as a result of the claimant's withdrawal means that the court does not have jurisdiction to hear counterclaims.
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