FRANCE Law and Practice Contributed by: Samuel Sauphanor, Alexandra Szekely, Timothée de Saint Viance and Benoît Barré, Le 16 Law
tees apply. The claim arises at the moment the harm occurs, but the creditor’s ability to recover depends on timely filing and the availability of assets. If the amount of damages is determined after the opening of insolvency proceedings, the filing deadline runs from the final judgment (Arti - cle L.622-24 of the French Commercial Code). While proprietary remedies remain limited under French law, victims may nonetheless pursue seizure, confiscation or priority restitution in the framework of criminal proceedings, provided they act promptly and with a clear evidentiary basis. 1.6 Rules of Pre-Action Conduct Pre-action conduct in fraud-related matters depends on whether proceedings are pursued before civil or criminal courts. Each route is gov - erned by distinct procedural frameworks and strategic considerations often dictate which path to follow. Criminal Route – Initiating Proceedings as a Civil Party Victims of fraud may initiate criminal proceed - ings by filing a plainte simple with the public prosecutor. If no action is taken within three months, or if the complaint is formally dismissed ( classement sans suite ), the victim may escalate the matter through a plainte avec constitution de partie civile . This is a civil party complaint that triggers a formal investigation by an investigative judge (Articles 85 and 88 of the French Criminal Procedure Code). This mechanism allows the victim to obtain investigative measures, includ - ing seizures, witness interviews and forensic examinations, even where the prosecutor has declined to act. However, this route requires evidence of direct and personal harm and may involve payment of
a judicial deposit ( consignation ) set by the judge. Once accepted, the case becomes adversarial and typically results in the appointment of an investigative judge ( juge d’instruction ). This is a powerful tool in complex fraud matters. Civil Route – Evidentiary Strategy and Procedural Obligations In civil proceedings, the burden of proof lies squarely with the claimant, as French civil courts apply the principle of party initiative ( principe dispositif ). Pre-action discovery is not auto - matic but Article 145 of the French Civil Proce - dure Code allows a party to seek investigative measures in futurum, before trial, where there is a legitimate risk that key evidence may be lost. These requests may be filed ex parte to preserve the element of surprise. For claims exceeding EUR5,000, Article 750-1 of the French Civil Procedure Code imposes a mandatory attempt at alternative dispute resolu - tion prior to initiating proceedings, although this requirement is typically waived in fraud-related cases given the public interest and gravity of the allegations. In both forums, careful preparation and early procedural engagement, whether through crimi - nal filings or protective civil measures, can sig - nificantly affect the outcome and strategic lever - age of the case. 1.7 Prevention of Defendants Dissipating or Secreting Assets French law provides effective interim measures to prevent the dissipation of assets pending judgment. These mechanisms are primarily in rem and operate through both civil and criminal channels, although they differ in scope, proce - dure and evidentiary thresholds.
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