Extract
[...] It necessarily follows that this situation, illuminated by concomitant indices of this financial situation (including the requests for obtaining a loan from a banking establishment and from the SCI), are of a nature to weigh a factual presumption of cessation of payments; these material facts can, from then on, play against Yann when filing his request with the commercial court. As a result, it seems extremely difficult for Yann to resort to the procedure for the designation of an ad hoc mandatary by the commercial court in view of the current situation of the SARL. [...]
[...] Any safeguard procedure must be the subject of a request from the debtor, 'without being in cessation of payments' and who must justify 'of difficulties that he is not able to overcome' (art. L 620-1 of the Commercial Code). In this case, it has already been mentioned supra that the company, in view of the circumstances of the case, was in cessation of payments. Consequently, it is impossible for Yann to resort to the safeguard procedure for the SARL. Another procedure is open within the collective procedures that is the judicial reorganization procedure. [...]
[...] As an express condition of recourse to the judicial reorganization procedure, it is requested that a forclusion period of forty-five days be respected within which the manager of the company, in their capacity, must transmit to the court their situation of cessation of payments. In default, the court may pronounce a sanction against the manager for failure to execute the transmission of information to the court. Finally, if the company is already engaged in a conciliation procedure, it is excluded that it can, at the same time, opt for a judicial reorganization procedure. In this case, it seems well indicated that Yann can resort to a judicial reorganization procedure. [...]
[...] To alleviate these expenses, three solutions are available to Yann. The first solution is to convene a general meeting to reduce Jean's salary as manager (namely five thousand five hundred euros net: EUR 5,500.00), which Jean refuses. The second solution is to grant a financial advance in favor of the SARL, which the SCI does to the amount of eight thousand euros (EUR 8,000.00). The third solution is to take out a loan from the bank for twenty thousand euros (EUR 20,000.00) for the benefit of the SARL; the condition being, for the bank, that the SCI stands as guarantor, which Jean also refuses. [...]
[...] The legal basis of judicial reorganization is found in the aforementioned Commercial Code, at articles L 622, R 626, L 631, R 631, and A 663. Judicial reorganization is open to any debtor who, the impossibility of facing the exigible debt with their available assets, is in cessation of payments\" (art. L 631-1, al. 1). Furthermore, unlike the collective judicial liquidation procedure, the collective judicial reorganization procedure intended to allow the continuation of the company's activity, the maintenance of employment, and the settlement of the debt\" (art. [...]
