Introduction

Role of the parties

Role of judge

Contentious matters

Concept

Powers of the judge

Principle of adversarial proceedings

Non-contentious matters

Underlying principles of civil proceedings

Right to bring civil action

Abuse of the right to bring proceedings

Type of action

Concept of action

Interest in bringing proceedings

Standing

Rules governing action

Legal action

Initial claim

Counterclaim

Additional claim

Intervention

Incidental claim

Interruption of limitation period

Application to file suit (demande en justice)

Defense on the merits

Procedural objections (exceptions de procédure)

Procedural bars to admissibility (fins de non-recevoir)

Defenses

Nature of claim

Amount of the claim

Jurisdiction ratione materiae

Principles

Exceptional territorial jurisdiction

Extension of jurisdiction

Territorial jurisdiction

Competent court

Formal requirements

Substantive requirements

Presentation of the QPC (Question prioritaire de constitutionnalité)

Referral to Court of Cassation

Referral to Constitutional Council

Referral of the QPC

Investigation procedure

Conduct of hearing

Decision of the Constitutional Council

Proceedings before Constitutional Council

Priority question of constitutionality (QPC)

Simplified case preparation procedure

Participative procedure for case preparation purposes

Extra-judicial case preparation

Recourse to technical expert

Agreements on extra-judicial case preparation (mise en état)

Disclosure of exhibits

Production of documents

Exhibits

Common provisions for investigations

Rules specific to each investigation

Investigative measures

Disputes concerning private deeds (actes sous seing privé)

Forgery procedure against authentic instruments

Challenges to documentary evidence

Oath sworn as decisive evidence

Oath tendered by way of supplementation

Judicial oath

Administration of evidence

Hearings

Deliberations

Judgment

Formation

Judgment after adversarial proceedings

Judgment by default or judgment after trial

Contentious or non-contentious judgment

Judgment on the merits or provisional ruling (avant dire droit)

Combined judgment

Provisional judgment

Judgment in fast track proceedings

Types

Joinder and severance of proceedings

Interruption of proceedings

Suspension of proceedings

Discontinuance of proceedings (extinction)

Procedural incidents

Plea of lack of jurisdiction

Recusal/Dismissal for legitimate suspicion

Challenging the judge's competence

General rules

Voluntary intervention

Compulsory intervention

Joinder in proceedings (intervention)

Existence of a judgment

Same subject matter, cause, and parties

Authority of res judicata

General conditions of enforcement

Provisional enforcement

Grace period

Enforcement of the judgment

Bearing of costs

Order to pay non-recoverable costs

Verification/Recovery

Claims/Disputes

Costs and expenses

Ordinary remedies

Extraordinary remedies

Remedies

Judgments

Calculation of time-limits

Acts of judicial commissioners

Service of documents

Ordinary notification

Notification between lawyers

International notification

Place of notification

Notification

Communication by electronic means

Procedural acts

1. Ordinary Law of Civil Procedure

Pursuant to Article 9 of the Code of Civil Procedure, “it is incumbent upon each party to prove in accordance with the law the facts necessary for the success of their claim” . The burden of proof thus lies with the claimant, who may be dismissed on the grounds that they do not enable the court to verify the facts necessary for the success of their claims . The Civil Code establishes an identical  …

Proof of facts

Pursuant to Article 9 of the Code of Civil Procedure, “it is incumbent upon each party to prove in accordance with the law the facts necessary for the success of their claim” . The burden of proof thus lies with the claimant, who may be dismissed on the grounds that they do not enable the court to verify the facts necessary for the success of their claims . The Civil Code establishes an identical principle by providing in Article 1353, para. 1, that the person demanding the performance of an obligation must prove it, while the debtor of said obligation must reciprocally justify the payment or extinction of their obligation if they claim to be released from it (Art. 1353, para. 2, Civil Code) .

The parties in civil proceedings must adhere to a principle of fairness. Thus, case law has deemed inadmissible as evidence a recording made and kept without the knowledge of the person in question  or surveillance . Regarding correspondence, the court is required to exclude from the proceedings any evidence obtained through fraud or duress .

The administration of evidence of the facts necessary for the success of the parties' claims also requires respect for the right to privacy, professional secrecy  or even banking secrecy . The court must then balance the infringement on the exercise of other rights and the rights of the defense. The infringement must indeed be proportionate to the conflicting interests at stake  and the objective pursued . In all cases, the production of the disputed document must be indispensable to the exercise of the right to evidence .

If the proof of facts is a prerogative granted to the parties in civil proceedings, it is not a monopoly. Indeed, Article 10 of the Code of Civil Procedure grants the court the “power to order ex officio any legally admissible investigative measures,” and Article 11 provides that “the parties are required to assist with the investigative measures, failing which the court may draw any consequences from an abstention or refusal. If a party holds an item of evidence, the court may, at the request of the other party, order them to produce it, if necessary under penalty of a fine. It may, at the request of one of the parties, request or order, if necessary under the same penalty, the production of all documents held by third parties if there is no legitimate impediment.” According to the Court of Cassation, the court cannot refuse to rule based on the insufficiency of evidence provided by the parties. Through a series of rulings, it has notably established the principle that the court cannot refuse to assess the amount of damage whose existence it acknowledges in principle and that it is up to the court to determine, if necessary by ordering a preliminary investigative measure.

Finally, the Court of Cassation has abandoned the “established fact” theory (théorie du fait constant) , according to which, in the absence of any challenge, the alleged fact must be deemed established by the court, and instead holds that trial courts are not required to consider alleged facts as established facts merely because they are not expressly contested .

Cass. 3e civ., 7 April 2004, LawLex202200005521JBJ

Cass. 3e civ., 6 February 2002, LawLex202200005349JBJ.

Cass. 1re civ., 5 July 2017,  LawLex202200005622JBJ.

Cass. 1re civ., 3 January 1980, LawLex202200005465JBJ; Cass. soc., 14 January 1988, LawLex202200007028JBJ; Cass. 2e civ., 10 May 1991, LawLex202200005329JBJ; Cass. com., 10 October 2000, LawLex202200007620JBJ.

Cass. 2e civ., 9 July 1997, LawLex202200005510JBJ.

Cass. 2e civ., 7 October 2004, LawLex202200005507JBJ; Cass. com., 3 June 2008, LawLex200800000961JBJ; 13 October 2009, LawLex202200007642JBJ.

Cass. 2e civ., 17 March 2016, LawLex202200005647JBJ.

Cass. 1re civ., 17 June 2009, LawLex202200005634JBJ.

Cass. 3e civ., 17 December 2013, LawLex202200007638JBJ; Cass. 1re civ., 4 June 2014,  LawLex202200007621JBJ.

Cass. com., 10 February 2015, No 13-14.779, LawLex202200005649JBJ; 29 November 2017, LawLex202200008292JBJ; 15 May 2019, LawLex202200008289JBJ.

Cass. 1re civ., 5 April 2012, LawLex202200005621JBJ.

Cass. 1re civ., 25 February 2016, LawLex202200005639JBJ.

1. Ordinary Law of Civil Procedure

14. Proof of facts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

14. Proof of facts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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