The judicial commissioner carries out many more tasks than those for which he is usually known. To gain a better understanding of the wide range of his duties, we need to look at the creation of this profession, resulting from the merger of bailiffs and auctioneers. Behind the image of the professional who performs acts and executes decisions lies an expert who can intervene in various fields without having a monopoly. These extended powersoften ignored, deserve to be explored.
Amicable and legal debt collection
The commissaire de justice may undertake the amicable or judicial recovery of any debt (article 1, II, 1° of order no. 2016-728 of 2 June 2016). This activity is not monopolistic and may be carried out throughout France.
Unlike collection companies, the judicial commissioner does not need a special mandate to collect. Article 28 of decree no. 2021-1625 of 10 December 2021 specifies that delivery of the documents constitutes a mandate to collect.
It is remunerated by feesdefined in a written agreement specifying their amount or method of determination (article L.444-1, paragraph 3 of the French Commercial Code).
A considerable advantage for the creditor: the judicial commissioner can quickly switch from amicable collection to judicial collection if necessary. And now he even has a simplified procedure for small claims.
Simplified small claims recovery procedure
This procedure, which is the monopoly of the judicial commissioner (Article 1, 7° of Order no. 2016-728), makes it possible to obtain an enforcement order without going to court.
It applies to receivables:
- Less than or equal to €5,000 in principal and interest
- Contractual or resulting from a statutory obligation
The debtor remains active in these proceedings. If the debtor agrees to participate and an agreement is reached within one month, the court commissioner issues an enforceable title deed that can be enforced immediately.
A quick and cost-effective way of obtaining an enforcement order - but only if the debtor cooperates.
Findings and expert opinions
The judicial commissioner may make purely material observations at the request of private individuals or on the judge's commission (Article 1, II, 2° of Order no. 2016-728).
Statements of facts at the request of private individuals
These findings constitute evidence of choice. They are established by a public official who must remain neutral in his observations.
There is a simple presumption that the report is true: "Except in criminal matters, where they have the value of mere information, these findings are authentic until proven otherwise". (article 1 of order no. 2016-728).
The court commissioner can draw up these reports:
- In a public place without restriction
- In a private place with the occupier's permission
- In a private place without authorisation but with a judge's commission
This activity may be delegated to a clerk authorised to draw up statements of facts, who must sign the deed countersigned by the court commissioner.
The judicial commissioner as the judge's technician
He may be assigned by a judge to enlighten the latter on a question of fact (Article 1, II, 5° of Order no. 2016-728). This mission may be carried out:
- During a trial (articles 232 et seq. of the Code of Civil Procedure)
- Before any trial, to establish evidence (article 145 of the Code of Civil Procedure)
The commissaire de justice is then not subject to the rules of his statute but acts as a technician.
Other non-monopolistic activities
The judicial commissioner has a range of complementary activities that can prove invaluable.
Conventional receivership
The judicial representative may be appointed as a conventional receiver (Article 1, II, 4° of Order no. 2016-728). He then becomes the custodian of a disputed item, responsible for holding it until the dispute is resolved.
This mission, governed by articles 1956 et seq. of the Civil Code, may involve movable or immovable property. Sequestration is established by an agreement specifying its essential terms and conditions.
Liquidator for small businesses
The commissaire de justice may act as liquidator in judicial liquidation proceedings concerning:
- Debtors with no employees
- Annual sales excluding tax of €100,000 or less
He may also be appointed as an assistant to the judge in professional recovery proceedings (Article 1, II, 3° of Order no. 2016-728).
Ancillary activities
Article 29 of decree no. 2021-1625 of 10 December 2021 authorises the commissaire de justice to engage in certain ancillary activities:
- Property manager
- Insurance agent
- Court-appointed or contractual mediator
To engage in these activities, he must inform his regional chamber and the public prosecutor. They may not use their professional status to pursue these ancillary activities, except in the case of mediation.
An important clarification: the judicial commissioner may not carry out mediation involving the acts of other judicial commissioners or involving enforcement proceedings.
A strategy tailored to each situation
The decision to use the services of a judicial commissioner for non-monopolistic activities depends on your situation. A statement of facts drawn up by this professional can sometimes prove decisive in a dispute. When it comes to recovering a debt, the range of his skills can be an invaluable asset.
Don't underestimate the legal expertise needed to determine the optimum strategy. Our law firm can assess your case and guide you towards the most appropriate professionals, optimising your strategy in line with the non-monopolistic activities of the judicial commissioner.. Make an appointment for a consultation and benefit from personalised advice.
Sources
- Order no. 2016-728 of 2 June 2016 on the status of commissaire de justice, article 1
- Decree no. 2021-1625 of 10 December 2021 on the powers of judicial commissioners, articles 28 and 29
- French Commercial Code, Article L.444-1
- Code of Civil Procedure, Articles 145 and 232 et seq.
- Civil Code, articles 1956 et seq.
- Decree no. 2019-1185 of 15 November 2019 on the professional training of judicial commissioners, article 37
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