A judicial liquidator may pursue a director who has committed a criminal offence, both on the civil front by bringing an action for liability for insufficiency of assets (Article L.651-2 C. com.)

Cour de cassation, Criminal Division, 21 October 2020, appeal no. 19-83.955

A judicial liquidator may pursue a director who has committed a criminal offence, both on the civil front by bringing an action for liability for insufficiency of assets (Article L.651-2 C. com.) — where that offence has the characteristics of a management fault — and on the criminal front by joining as a civil party to ongoing criminal proceedings in respect of the same acts alleged against the same director.

It was on this basis that the Criminal Division, citing Articles 2 and 3 of the Code of Criminal Procedure, quashed a judgment of the ROUEN Court of Appeal that had dismissed the claims of the judicial liquidator — civil party — in the presence of a judgment of the PARIS Court of Appeal that had previously ordered the director to bear part of the insufficiency of assets of the liquidated company, in unequivocal terms: “In ruling thus, when the civil action founded on the prosecuted offences is distinct from the action for liability for insufficiency of assets, the Court of Appeal disregarded the aforementioned provisions and principle.”

The maxim non bis in idem does not apply.