Comparative Law Spring 2003Professor Susanna Fischer

FRENCH CIVIL PROCEDUREMarch 20, 2003

Sources of Law: French Civil Procedure

New Civil Procedure Code of 1975 (NCPC) Right to bring and defend an action is a fundamental constitutional rightNCPC procedure is a servant of rightsNeed to have standing – a legitimate personal interest at the date of the court case; must be qualified to bring the action

Role of the Judge in French Civil Procedure

Does the judge have a greater role in French civil procedure than in the U.S. federal district courts?

Role of French Judges

Considerable power in preliminary hearing to direct preparation of case and order disclosure of documents or responses to pleadings. Also determines when case is ready for trial. Court (huissier) usually serves claim on DNo mandatory exchange of documents unless judge orders discoveryCourt examines witnesses

Other Big Differences Between French and U.S. Civil Procedure?

Some Other Big Differences Between French and U.S. Civil Procedure?

No juriesNo punitive damagesNo class actionsOral advocacy is less importantNo real cross-examination of witnesses – written proof is preferredNo contingency fees

French Judgments/Dissents

Where there is more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published?

French Judgments/Dissents

Where there is more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published?No – even if there is a compromise outcome, the different judge’s views are not reported. Judgments are in a particular form and must be read out in open court.

Form of JudgmentsParties' names, their occupations and addresses, and the names of the parties' representatives and legal counsels. The names of the court and the judges who rendered the judgment are included as well. Claims of parties and factsBody (legal grounds) for decisionDispositif (similar to American court’s holding)If not in proper form, judgment will be void

How Do You Commence a French Civil Proceeding?

Note – we’ll focus on procedure in the Tribunaux de Grande Instance, though this is increasingly being followed in proceedings before other courts, such as the tribunaux d'instance, the tribunaux de commerce, and the conseil des prud'hommes, which traditinoally had a simpler, more oral procedure

How Do You Commence a French Civil Proceeding in TGI?

Draft and Issue a statement of claim (need legitimate and personal interest at relevant date)Claim form must be issued by huissier (see Art. 56 NCPC). If in TGI must appoint lawyer (claim form must mention time frame for this)Claim form must be served – by post, in person (by huissier), or through D’s lawyerCan serve at person’s last known addressMust file at court within 4 months or service is invalid

Claim form: France

Are the required contents of a claim form similar to what must be in a Complaint filed in a federal district court?

France: Defendants defence

How and when can the defendant respond?

Defendants defence

How can the defendant respond?1. Action inadmissible2. Denial3. Procedural irregularity e.g. failure to serve4. Counterclaim/set offDefendant must respond within 2 weeks unless not served personally (then has 2 months)

What Happens Next in a French Civil Case?

What Happens Next in a French Civil Case in then TGI?

Parties exchange pleadings – statement of each party’s claims and arguments in supportArrange, on own initiative, all relevant documents.Parties can continue to exchange pleadings until they are sure that all points have been raised.The judge will call a preliminary hearing – appel des causes. What happens at this hearing?

Appel des causesPreliminary hearing – appel des causes. Judge looks at progress of action including exchange of pleadings and disclosure of documents. Decides whether action has reached a stage when matter can proceed to court (short procedure) or whether additional work needs to be done.Usually, judge find that more preparation is needed under court supervision (long procedure).

Long Procedure

If the case is not ready to proceed to hearing on the date of the appel des causes, what happens?

Long ProcedureIf the case is not ready to proceed to hearing on the date of the appel des causes, what happens?Goes to a judge (judge de la mise en état), who helps parties prepare for trial within a reasonable time, by answering pleadings, exchanging documents, etc. Judge tries to facilitate agreement. If parties can’t agree, judge can order parties to respond to pleadings or take necessary steps. Judge can send to trial if one party is ready and other is delaying unduly.

Long Procedure: inquisitorial and adversarial

How is the long procedure both inquisitorial AND adversarial?

Long Procedure: Discovery

How does French discovery differ from discovery in the U.S. district courts?

Long Procedure: DiscoveryHow does French discovery differ from discovery in the U.S. district courts?Parties only have to disclose favorable material; judge can play a wider role in obtaining evidence, both oral and written. In practice, in many cases the French judge will not take such an active role in proof-gathering.French lawyers can’t contact third party witnesses; only the party can do that and prepare witness testimony.

What is a French Civil Trial Like?

What is a French Civil Trial Like?

Judge relies primarily on written file from preliminary stage and sometimes on a report from preliminary stageThe parties to French civil litigation can give evidence though often their lawyers do not cause them to do so.Judge must generally agree for live witnesses to testify – most witness testimony is writtenJudge can permit parties to continue to debate issues until judge decides case has been fully debated

Rendering Judgment in a French Civil Trial

Judge(s) formally end the hearing.May immediately give judgment, but more usually retire to deliberateFinal judgment is very conciseJudgment is enforceable when a final copy (une grosse) is served on the party against whom judgment is made AND time for appeal has expired without any party making an appeal