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Le juge-commissaire et la juridiction commerciale : contribution à l'étude d'une magistrature économique

Abstract : The bankruptcy judge, an important component in collective procedure law, has never been researched in-depth, demonstrating a discrepancy between theory and practice. Yet, the bankruptcy judge has seen both his functions and his missions evolve over the course of successive legislative reforms. Even if bankruptcy remains a failure as well as a fault, it is not necessarily contrary to morality. Nowadays, failure has become a necessary risk that allows struggling companies to purge all their debts, allowing the debtor a right to rebound by the legislator. Nevertheless, the bankruptcy judge has been given tools by the legislator to help companies restructure. The bankruptcy judge must, as part of his supervisory role, weigh up the conflicting interests. Finding a balance between divergent and opposing interests has resulted in political influence on the law regarding struggling companies. It is necessary to determine a hierarchy among the different interests; a hierarchy that the bankruptcy judge must enforce. In view of restructuring and safeguarding companies, this research has defined a new interest: that of the failing company, an interest that must be given priority when the company in question deserves to be protected. Therefore, the current function of the bankruptcy judge must evolve towards new rights within this singular economic magistrature, at the crossroads of commercial law, the law regarding struggling companies and civil law.
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Submitted on : Monday, April 26, 2021 - 3:32:14 PM
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Ambre Fageole-Maury. Le juge-commissaire et la juridiction commerciale : contribution à l'étude d'une magistrature économique. Droit. Université Clermont Auvergne, 2018. Français. ⟨NNT : 2018CLFAD017⟩. ⟨tel-03208467⟩

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