When faced with a judicial commissioner, people may feel powerless. A public officer, this auxiliary of justice, formerly a bailiff, fulfils a public service mission by being responsible for enforcing court decisions and serving documents. However, like any professional, they can make an error, a mistake or even abuse their position. In these complex situations, the help of a lawyer specialised in enforcement is often essential to defend your rights. There are a number of ways of defending yourself and remedies available. In addition to specific remedies, a general legal support can prove invaluable in navigating the legal system.
I. Role and duties of the judicial commissioner (former bailiff)
The profession of judicial commissioner is the result of the merger, from 1 July 2022, of the professions of bailiff and auctioneer. Its role is regulated by law and its missions are wide-ranging. Some are exclusive to it, such as the enforcement of enforceable titles. This includes seizing assets, bank accounts or wages to recover a debt. He is also the only person authorised to carry out rental evictions ordered by a court. For more information on the stages and rights involved in a eviction proceedingsOur dedicated guide provides comprehensive information. The service of legal documents (summonses, judgements) and extrajudicial documents is another of his exclusive prerogatives, which guarantees that they are officially delivered to the addressee. Finally, they can be called upon to draw up statements of facts that will serve as material evidence in a dispute.
II. Legal and ethical obligations: the framework of its responsibility
The work of the commissaire de justice is strictly governed by legal obligations and a strict code of ethics. Violation of these duties may result in professional civil, disciplinary or even criminal liability.
A. Imperative compliance with enforcement procedures
Any intervention by the judicial commissioner must be based on a valid enforceable title, such as a judgment or a notarised deed bearing the executory formula. This document is the cornerstone of any enforcement measure. It must scrupulously comply with the provisions of the Code of Civil Enforcement Procedures (CPCE) and, more broadly, the Code of Civil Procedure, which dictate the conditions, time limits and forms of each procedural act, often on pain of nullity.
B. Duties of probity, diligence and advice
The commissaire de justice has a duty of diligence, which requires him to act efficiently and within a reasonable time. Their duty of probity prohibits any dishonest or fraudulent behaviour. They also have a duty to advise parties on their rights, obligations and possible remedies. Any breach of these duties constitutes professional misconduct for which the lawyer may be held liable.
C. Insurance and financial guarantees in the event of loss
To protect litigants, the profession is subject to compulsory professional indemnity insurance. In the event of misconduct on the part of the commissaire de justice causing injury, this insurance provides compensation to the victim. In addition, the Chambre nationale des commissaires de justice provides a collective financial guarantee that secures funds held on behalf of third parties and guarantees compensation in the event of individual insurance failure.
III Identifying a fault, abuse or procedural error
Litigants may challenge the actions of a judicial commissioner on various grounds. It is essential to clearly identify the nature of the malfunctioning in order to correctly orient one's defence strategy.
A. Common procedural errors (service, time limits)
Service of a document is said to be irregular if it does not comply with the formalities laid down by law. For example, delivery to the wrong address or to an unauthorised person may render the document null and void. This means that the document is deemed never to have existed. Failure to comply with strict time limits, such as the eight-day time limit for notifying the debtor of an attachment order, will result in the attachment order lapsing (being cancelled). These formal defects, such as a defect in a summons to pay, are frequent and effective defences.
B. Abuse of power and abusive seizures
Abuse of power takes the form of intimidation, threats or harassment aimed at forcing payment. A seizure may be deemed abusive if it is disproportionate to the amount of the debt, or if the fees charged are manifestly excessive. For example, an unjustified fee or a fee that includes travel expenses unrelated to the geographic proximity of the law firm. The enforcement judge (JEX) has the power to penalise such behaviour and may order the measure to be lifted, while ordering the creditor to pay damages and costs.
C. Breaches relating to seized third parties (banks, employers)
In the event of an attachment order, the garnishee (bank, employer) is obliged to declare the extent of its obligations to the debtor "on the spot" to the judicial officer. A delay in making this declaration may give rise to liability on the part of the third party, but the commissioner may also be at fault. The commissioner is at fault if he seizes funds that are legally exempt from seizure (family allowances, RSA, etc.) or if he fails to comply with the rules specific to joint accounts. For an in-depth understanding of the mechanisms of seizure-attribution, consult our detailed guide to the obligations of garnishees.
IV. What remedies are available against a judicial commissioner?
Before embarking on a litigation strategy, an amicable approach can be explored. An attempt at mediation with the court commissioner or a direct discussion with the law firm can sometimes resolve a misunderstanding. However, if this collaboration fails, there are several avenues of recourse. They are not mutually exclusive and can be pursued simultaneously, depending on the nature of the dispute.
A. Legal recourse: Referral to the Enforcement Judge (JEX)
The Enforcement Judge is the natural and exclusive judge for difficulties relating to an enforcement order. He is not content with the formal verification of deeds; he rules on the substance of the law. Individuals may apply to the Enforcement Judge by writ of summons to contest the validity of a seizure, the amount of the seizure, or to request the nullity of a procedural act. To do this, an application must be lodged with the clerk of the relevant court. The JEX has extensive powers: it can order the release of an attachment, grant payment deadlines, or order the creditor to pay damages for wrongful attachment. His intervention is the most direct and effective tool for the debtor, and a decision can be appealed.
B. Disciplinary proceedings: Referral to the Disciplinary Board
Any breach of ethical obligations (probity, dignity, diligence) is a matter for disciplinary action. Individuals may submit a written complaint, for example by registered letter, to the regional chamber of judicial commissioners whose territorial jurisdiction covers the professional's place of practice. An investigation is then conducted. If the facts are proven, the case is referred to the disciplinary chamber, a professional court that can impose sanctions ranging from a warning to dismissal. For a detailed understanding of the disciplinary procedures applicable to commissaires de justiceA dedicated article looks in more detail at this subject.
C. Criminal proceedings: Filing a complaint with the Public Prosecutor
In the most serious cases, such as forgery of a public document, the actions of the commissaire de justice may constitute a criminal offence. Abuse of authority, misappropriation of funds or breach of professional secrecy justify filing a complaint with the public prosecutor. This initiates a separate procedure within the judicial system, with the aim of ensuring that the professional at fault is penalised for the offence in question.
V. How do you deal with a judicial commissioner?
Adopting the right reflexes from the first contact with a judicial commissioner is essential to safeguard your rights and establish a relationship of trust whenever possible.
A. Requesting and checking the writ of execution
No seizure can be carried out without a writ of execution. You are entitled to demand that you be given a copy of this document (a judgment, notarial deed, etc.). Check carefully to see if the "formule exécutoire" is present, which attests to its binding force. The absence or invalidity of this document will paralyse the entire procedure. If in doubt, ask the firm for a verification certificate.
B. Know the limits of your powers (hours, days, unseizable assets)
The court commissioner cannot intervene at any time. Unless authorised by the judge, no home seizures can take place between 9pm and 6am, or on Sundays and public holidays. In addition, the law protects certain items that are essential to everyday life and work (clothing, food, work tools), which cannot be seized.
C. Being assisted by a lawyer specialising in enforcement procedures
The complexity of the procedures and the often very short deadlines make the assistance of a lawyer almost indispensable. A lawyer with a dedicated practice in this area will be able to analyse the legality of deeds, identify loopholes, initiate mediation or draft the summons to appear before the Enforcement Judge. To find such an expert, you can consult specialist directories or the Ordre des Avocats, such as the Paris Bar. His expertise is the best guarantee of an effective defence and an appropriate strategy.
Challenging the action of a judicial commissioner is not a futile exercise. By knowing your rights and the remedies available to you, you can defend yourself against errors and abuses. With the assistance of a lawyer, you can choose the most appropriate strategy and put your case before the appropriate court. A closer look at role and powers of the Enforcement Judge (JEX) is also available to guide you. For an analysis of your situation and the implementation of an appeal, contact our law firm.
Frequently asked questions
What is the difference between a court commissioner and a lawyer?
The commissioner of justice is a public officer and auxiliary of justice responsible for enforcing court decisions and serving documents. Lawyers are legal professionals who advise, assist and represent their clients before the courts to defend their interests.
Can a court commissioner enter my home in my absence?
Yes, but under the strict conditions set out in the Code of Civil Procedure. If he has a writ of execution, he can enter a home, even in the absence of the occupant, but he must be accompanied either by the mayor, a local councillor, a police or gendarmerie officer, or two adult witnesses.
What is the Enforcement Judge (JEX)?
The Juge de l'Exécution (JEX) is a magistrate of the judicial court who specialises in the litigation of enforcement measures. It is the court to be used to contest the validity of a seizure, request the release of a measure or obtain compensation for abusive enforcement.
How much does it cost to contest a judicial commissioner's act?
Costs vary depending on the procedure. Referral to the Enforcement Judge involves lawyers' fees and procedural costs (issue of the writ of summons, known as costs). Legal aid may be applied for on a means-tested basis. Disciplinary proceedings are free of charge, as is an attempt at mediation.
What is an enforcement order?
An enforceable title is a legal document that establishes a debt and authorises the creditor to enforce it. The main enforceable instruments are court rulings (judgments, orders) and notarial deeds bearing the executory clause.
What should I do if I receive a summons to pay?
A summons to pay is a document asking you to settle a debt. It does not constitute a seizure, but means that a creditor has taken official action. It is crucial not to ignore it. Check the validity of the debt and contact a solicitor to obtain a suitable response and consider your options before the situation leads to a court case.
Where do I file my dispute with the JEX?
The dispute must be formalised by a writ of summons. A copy must be filed with the clerk of the enforcement judge, which is a department of the judicial court in the jurisdiction where the enforcement is taking place. The clerk will then give you a certificate of registration of the case.
How much does a judicial commissioner's report cost?
Remuneration for a statement of facts is partly unrestricted, unlike monopoly acts, where the fee is regulated. The cost may therefore vary depending on the complexity, the time spent and the location of the survey (prices in Paris may differ from those in the regions).
How can I be sure that a judgement has been handed down?
The clerk of the court that issued the judgment is responsible for keeping the original (the minute). It is this clerk who issues the enforceable copies. The act of service, carried out by the court commissioner, is the procedure that ensures official transmission of the judgment and starts the time limits for appeals.
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