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

The absence of the defendant does not prevent the court from ruling on the merits in the form of a judgment deemed adversarial since Article 472 of the Code of Civil Procedure provides that when the defendant does not appear, a decision is nevertheless made on the merits (Art. 472, para. 1, CPC) . Indeed, the classification of a judgment by default, in the strict sense of the term, requires the fu …

Judgment by default or deemed adversarial (in absentia)

The absence of the defendant does not prevent the court from ruling on the merits in the form of a judgment deemed adversarial since Article 472 of the Code of Civil Procedure provides that when the defendant does not appear, a decision is nevertheless made on the merits (Art. 472, para. 1, CPC) . Indeed, the classification of a judgment by default, in the strict sense of the term, requires the fulfillment of specific conditions specified in Article 473 of the Code of Civil Procedure. However, in the case provided for by Article 472, the court can only grant the application to the extent that it deems it regular, admissible, and well-founded (Art. 472, para. 2, CPC) .

Whether the defendant is alone or there are multiple defendants, the classification of a judgment by default requires two conditions: a final decision and the absence of personal service to the non-appearing party. Thus, in the case of a single defendant, the judgment is rendered by default when the defendant does not appear, if the decision is final and if the summons has not been personally served . In the case of multiple defendants, the judgment is also rendered by default when the decision is not subject to appeal and at least one of the parties who did not appear was not personally served (Art. 474, para. 2, CPC). However, the court cannot rule before the expiration of the longest appearance period, on the first or second summons. The court renders a single judgment for all defendants, unless circumstances necessitate a specific solution for some of them (Art. 475 CPC). A judgment rendered by default may be subject to opposition, except in cases where this remedy is expressly excluded (Art. 476 CPC).

On the contrary, when the decision is subject to appeal or when the summons has been served personally to the defendant, the judgment is deemed adversarial, according to Article 473, para. 2. The same applies in the case of multiple defendants summoned for the same subject. When at least one of them does not appear, the judgment is deemed adversarial for all if the decision is subject to appeal or if those who do not appear have been personally summoned (Art. 474, para. 1, Code of Civil Procedure). A judgment deemed adversarial can only be challenged by the remedies available against adversarial judgments (Art. 477 Code of Civil Procedure).

Pursuant to Article 478, whether rendered by default or deemed adversarial solely because it is subject to appeal, the judgment, which has not been served within six months of its date, is declared void . In this case, the proceedings may be resumed after reiteration of the original summons  before the court competent at the date of the reiteration . Only the enforcement judge is competent to rule on the application seeking to have the judgment declared void , as this aims to deprive it of its enforceable nature . Furthermore, the incident seeking to establish the lapse of the judgment by application of Article 478 is inadmissible as soon as the appellant has preceded it with submissions on the merits .

Article 478 cannot be invoked by all parties, nor raised ex officio by the court. Indeed, this provision is enacted for the benefit of the sole party who neither appeared nor was personally served, and the judgment's nullity can only be established at their request, provided that the judgment is prejudicial to them. Except in cases of indivisibility, only the judgment deemed adversarial, which was not personally served, is null. The defaulting party may waive the protective provisions of Article 478. This is the case when they file an opposition or appeal. If the appeal constitutes a waiver, the Court of Appeal must nevertheless rule on the subsidiary claim submitted to it by the devolutive effect of the appeal, which seeks to reform the judgment, the fact that the appellant supports no other grounds than the nullity of the judgment being irrelevant to the admissibility of the appeal. The provisions of Article 478 do not apply to decisions rendered by the Court of Cassation, to judgments of a Court of Appeal deemed adversarial, to judgments that do not divest the judge, or to non-adversarial decisions rendered at the request of a party in a procedure not requiring appearance.

If it is rendered against a party residing abroad, the judgment by default or deemed adversarial must expressly record the efforts made to inform the defendant of the initiating document (Art. 479 CPC) .

Cass. 2e civ., 3 December 2015, LawLex202300009614JBJ.

Cass. 2e civ., 3 December 2015, LawLex202300009614JBJ; 2 July 2020, LawLex202300010302JBJ.

Cass. 2e civ., 27 June 2019, LawLex202200009296JBJ.

Cass. 2e civ., 14 April 1988, LawLex202300009552JBJ, which quashes the judgment noting that service was effected at the domicile of the owners' agent and not to the parties themselves.

Cass. 2e civ., 15 May 2014, LawLex202300008089JBJ, which specifies that the reiteration must concern the initial writ of summons and cannot take the form of a counterclaim.

Cass. 2e civ., 6 January 2012, LawLex202300008235JBJ.

Cass. 2e civ., 11 October 1995, LawLex202300000757JBJ.

Cass. 2e civ., 16 May 2013, LawLex202200010359JBJ.

Cass. 2e civ., 22 November 2001, No 99-17.875, LawLex202200006652JBJ.

Cass. 2e civ., 11 April 2019, No 17-31.497, LawLex202300008223JBJ.

1. Ordinary Law of Civil Procedure

214. Judgment by default or deemed adversarial (in absentia)

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Les notions juridiques connexes

214. Judgment by default or deemed adversarial (in absentia)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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