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

To prevent any conflict and avoid resorting to the courts, a new type of rules inspired by common law, called compliance rules, has emerged, which notably requires the adoption of codes of conduct that set out the governance principles of the undertaking. These private codes constitute a set of recommendations and guidelines, whose adoption results from a unilateral decision by the employer, lacki …

Towards alternative rules?

Justice, a multifaceted concept, first refers to the idea of fairness, which involves granting all individuals equal treatment. From fairness arises the principle of equality of rights. Justice can also be corrective, aiming to remedy harm in order to restore fairness through the compensation of victims. Justice also entails the right to an impartial and independent tribunal that guarantees the rights of the parties. Texts related to human rights and fundamental freedoms, such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the Declaration of the Rights of Man and of the Citizen, or the International Covenant on Civil and Political Rights, proclaim the right to be judged by an impartial and independent tribunal, which constitutes a general principle of law.

The rules of civil procedure provide the judiciary with a legal framework by establishing the principles applicable to proceedings and the provisions governing them. Thus, the Code of Civil Procedure encompasses a set of rules and principles that regulate disputes between individuals, undertakings, or legal entities. Certain matters, such as consumer law or competition law, which grant greater powers to public authorities, are nevertheless subject to specific procedural rules.

Civil procedure, legal framework of justice

Theoretically, civil law (droit continental) systems and common law (droit anglo-saxon) systems adopt two different conceptions of justice. In France, justice is inquisitorial in that it gives a predominant role to the judge responsible for discovering the truth. While evidence must be provided by the parties, the judge has the power to order ex officio all legally admissible investigative measures. Thus, during the trial, if the judge does not have sufficient elements to rule, they can order investigative measures to establish the reality and accuracy of the facts on which the dispute is based and on which the solution depends. The judge investigates the case and can resort to the judicial oath, allowing them to ask a party to affirm, by swearing at the bar of the court, the truth of their statements (Art. 317 et seq. Code of Civil Procedure - CPC). Conversely, in the adversarial procedure in force in common law countries, the central role belongs to the parties, who are responsible for presenting their evidence and arguments before a judge or jury. The trial is based on the confrontation of the parties, with the judge or jury acting as an impartial arbiter, while the parties oppose each other during examinations, cross-examinations, and pleadings. While inquisitorial justice is mostly written, the adversarial procedure is essentially oral.

Even though French justice has been evolving in recent years towards civil procedures that offer greater freedom to the parties by entrusting them with the initiation and impetus of the dispute, it remains heavily influenced by the inquisitorial system, particularly in the context of procedures implemented before independent administrative authorities, such as the Competition Authority, which has significant powers of investigation, decision, and sanction.

Inquisitorial procedure vs. adversarial procedure

Trials generally involve resolving disputes related to the application of law. They thus contribute to the definition of positive law through the judicial solutions they establish. In some cases, however, a court may be seized in a non-contentious manner. The main actors in trials—the court and the parties—play different roles.. In French law, civil procedure follows the dispositive principle, which grants the parties powers of initiative and impetus. Thus, according to Article 4 of the Code of Civil Procedure, “the subject matter of the dispute is determined by the respective claims of the parties.” The court, for its part, ensures the proper conduct of the proceedings (Art. 3 CPC). This duty requires it to guarantee the parties respect for the guiding principles of proceedings.

The court must thus ensure compliance with the adversarial principle by allowing the parties to present their respective viewpoints. Each party must be able to defend themselves fairly. From the adversarial principle arises the principle of equality of arms, which ensures that the parties have the same rights to defend themselves. Each party must have access to the evidence and the opportunity to challenge it. The court must also ensure the speed and fairness of the proceedings by maintaining the integrity of the proceedings and respecting a reasonable time frame. The public nature of the proceedings guarantees the transparency of justice. In other words, each party is entitled to a fair and equitable trial within an impartial and independent court. They must also benefit from two levels of jurisdiction to allow them to challenge, if necessary, the outcome provided by the court to the dispute between them. In all cases, a trial must respect the principle of legality, and the court must rule in accordance with the applicable rules.

Civil proceedings

The constant criticism directed at the justice system lies in its slowness and lack of efficiency. Overburdened courts, complex rules to implement, overly cumbersome procedures, all these dysfunctions that successive reforms of civil procedure have attempted—in vain—to put an end to.

Without reiterating all the texts that have, over the years, amended the Code of Civil Procedure, the main reforms initiated since the beginning of the 21st century will be cited here.

The legislator first established, to relieve the courts, amicable dispute resolution methods. Decree No 2012-66 of 20 January 2012 thus inserted a Book V into the Code of Civil Procedure dedicated to the amicable resolution of disputes, with Title I governing conventional mediation and conciliation and Title II the participatory procedure. Then, Decree No 2015-282 of 11 March 2015 created, within Book I of the Code of Civil Procedure, a Title VI relating to conciliation and mediation, allowing the court to propose to parties who do not demonstrate efforts made to achieve an amicable resolution of the dispute a measure of conciliation or mediation .

To facilitate individuals' access to justice and encourage parties to resort to amicable dispute resolution, the legislator adopted Law No 2016-1547 of 18 November 2016 on the modernization of 21st-century justice. Pursuant to this law, Decree No 2017-892 of 6 May 2017, implementing various measures for the modernization and simplification of civil procedure, reformed the challenge for bias and referral due to legitimate suspicion, authorized the court to ex officio raise the peremption of proceedings, and clarified certain provisions related to interim orders. In the case of oral proceedings, when all appearing parties submit their claims and arguments in writing, it established a structuring of submissions. It also provided for the possibility of an appeal against decisions to remove experts from the lists and required the reasoning of appeals against decisions refusing registration on expert lists. Finally, it set out the rules applicable to the participatory procedure for trial preparation.

The Law No 2019-222 on the 2018-2022 programming and reform for justice was adopted on 23 March 2019. This text aimed, in particular, to simplify and clarify procedures, refocus the court on its primary function, enhance the proximity and quality of justice, and better protect victims. It also notably merged the district courts and regional courts into the Judicial Court. Decree No 2019-1333 of 11 December 2019, reforming civil procedure, enacted pursuant to Law No 2019-222, amended Articles 54 to 58 of the Code of Civil Procedure to simplify the modes of referral, particularly allowing parties to submit a joint petition. The decree also relaxed the rules on procedural objections by introducing Article 82-1 to the Code of Civil Procedure, which allows for resolving jurisdictional issues within a Judicial Court before the first hearing by noting it in the file, at the request of a party or ex officio by the judge, and established the principle of provisional enforcement by right in Article 514 of the Code of Civil Procedure, a principle that can be set aside by the court under Article 514-1 - in whole or in part - if deemed incompatible with the nature of the case, as well as the rules governing optional provisional enforcement. It also set the rules intended for the development of the participatory procedure. Finally, Decree No 2020-1452 of 27 November 2020, containing various provisions, reshaped certain provisions of the Code of Civil Procedure, some of which were established by Decree No 2019-1333.

On 18 October 2021, the General Assemblies on Justice (Etats généraux de la justice) were held. They involved approximately 50,000 people. Workshops then brought together 12 citizens, 12 judges and ministry officials, and 12 justice partners to prioritize and deepen the proposals from the consultation. This was followed by the presentation of an action plan for a faster and more efficient justice system on 5 January 2023, which included an increase in human and financial resources, a reorganization of the preparation for trial to promote a faster and more participatory justice closer to the litigant, and the transformation of 12 commercial courts into economic activity courts. These General Assemblies led to the adoption of the Orientation and Programming Law of the Ministry of Justice 2023-2027 on 20 November 2023, which, in addition to increasing the justice budget and reforming criminal procedure, notably provides, on an experimental basis, for an extension of the jurisdiction of the commercial court to handle all amicable and collective procedures initiated by economic actors, except for regulated legal professions, with the court being renamed the Economic Activities Court (EAC).

Over the course of reforms, the legislator has endeavored to reconcile opposing interests. It is difficult to ensure the parties the speed of proceedings while allowing the courts to effectively play their role within a reasonable time frame, given the lack of human and financial resources in the justice system. The legislator has now chosen to encourage litigants to turn to alternative dispute resolution methods, particularly to lighten the load on first-instance courts while providing a negotiated and faster solution for the parties.

Decree No 96-652 of 22 July 1996 had previously established rules relating to judicial conciliation and mediation in the new Code of Civil Procedure in Articles 831 to 835.

Reforms aimed at a faster and more efficient justice system

The reforms that have taken place in recent years are pushing litigants towards alternative justice, ranging from alternative dispute resolution methods, such as arbitration, to amicable dispute resolution methods as defined by the Code of Civil Procedure, only the latter being considered here, such as conciliation or mediation. When the parties have not taken steps to amicably resolve the dispute, the court may, under Article 127 of the Code of Civil Procedure, propose conciliation or mediation to reach an amicable solution. It may even, in the absence of agreement between the parties, order them to meet with a mediator. Article 128 of the Code of Civil Procedure thus provides that throughout the proceedings, the parties may reconcile themselves or at the initiative of the court. In this case, the court retains a central role since, under Article 129, it is up to the court to determine the favorable place and time for conciliation and to propose that the parties use a judicial conciliator who takes over from the court. Mediation, which can also be proposed by the court handling the dispute (Art. 131-1 CPC), may cover all or part of the dispute, but does not divest the court, which can, at any time, resume control and adopt the measures it deems necessary (Art. 131-2 CPC). In both cases, the court continues to exercise the essential part of its mission, which is to ensure the proper conduct of the proceedings and order the necessary measures. Going further, the legislator has established in Articles 1528 and following, amicable dispute resolution procedures, conducted even before any court referral. Thus, the parties to a dispute have access to conventional conciliation and mediation (Art. 1530 et seq. CPC), which Article 1530 defines as any structured process by which two or more parties attempt to reach an agreement, outside of any judicial procedure, for the amicable resolution of their disputes, with the help of a third party chosen by them, who performs their mission with impartiality, competence, and diligence. The parties may also call upon a judicial conciliator as defined in Article 1536. Finally, the last instrument available to the parties, the participatory procedure, which can be conventional or take place within the framework of the proceedings, allows the parties to commit to working jointly and in good faith towards the amicable resolution of their dispute or the preparation of their case (Art. 2062 Civil Code).

Towards alternative justice?

To prevent any conflict and avoid resorting to the courts, a new type of rules inspired by common law, called compliance rules, has emerged, which notably requires the adoption of codes of conduct that set out the governance principles of the undertaking. These private codes constitute a set of recommendations and guidelines, whose adoption results from a unilateral decision by the employer, lacking binding value. They do not replace or prevail over national legislation or regulation. Instead, they aim to define objectives and suggest different means to achieve them, generally combining elements of legislation, regulation, listing rules, self-regulation mechanisms, contractual obligations, voluntary commitments, and business practices. However, the companies that adhere to them are required to comply with the “comply or explain” principle. To ensure the effectiveness of the measures in their code, the Afep and Medef have established a High Committee on Corporate Governance (Haut Comité de gouvernement d’entreprise - HCGE). This committee is responsible for monitoring the application of the corporate governance code for listed companies that refer to it and ensures the effective application of the fundamental corporate governance rule based on the “comply or explain” principle. As a guarantee of the credibility of companies with their various partners and the public, these codes play a preventive role that prevents violations and avoids the need to bring proceedings before the court. Their violation is “sanctioned” as it may harm the company's reputation and have negative economic repercussions.

To lighten the burden on the courts and, in particular, to compensate for the lack of resources available to the judicial system, civil justice is gradually but increasingly shifting from public justice administered by the State, subject to official legal procedures and standards established by institutions, to private justice, more horizontal or less vertical, where the parties involved choose to resolve their dispute outside the official judicial system by resorting to more flexible procedures better suited to their specific needs.

1. Ordinary Law of Civil Procedure

6. Towards alternative rules?

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Les notions juridiques connexes

6. Towards alternative rules?

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