Introduction

Common provisions for proceedings with and without mandatory representation

Notice of appeal in cassation

Exchange of pleadings and documents

Proceedings with mandatory representation

Notice of appeal

Role of court clerk

Prerequisites

Review procedure

Judicial review in civil matters

Proceedings without mandatory representation

Concept of referral for opinion

Prerequisites for referral

Role of court seeking opinion of Court of Cassation

Role of the Court of Cassation

Procedure

Referral for opinion

Withdrawal

Recusal

Claim of forgery

Removal from the register

Cross-appeal (pourvoi incident)

Incidents

Concept of review (contrôle)

Extent of review

Grounds for appeal to the Court of Cassation

Review by Court of Cassation

Proceedings before the Court of Cassation

4. Proceedings before the Court of Cassation

When a party believes that a document submitted to the Court of Cassation is false or has been falsified, a claim for forgery may be filed. The claim must be addressed to the first president (Art. 1028, para. 1, CPC). By specifying that the document must be submitted to the Court of Cassation, Article 1018 effectively excludes documents submitted to the trial courts . The claim of forgery must be  …

When a party believes that a document submitted to the Court of Cassation is false or has been falsified, a claim for forgery may be filed. The claim must be addressed to the first president (Art. 1028, para. 1, CPC). By specifying that the document must be submitted to the Court of Cassation, Article 1018 effectively excludes documents submitted to the trial courts . The claim of forgery must be filed with the court registry and signed by a lawyer at the Council of State and the Court of Cassation if legal representation is mandatory in the case for which the claim is made (Art. 1028, para. 2, CPC). Otherwise, the claim is inadmissible.

According to Article 1029, the first president rules after consulting the public prosecutor. He issues an order of dismissal or an order authorizing the forgery proceedings . In case of dismissal, the applicant may be ordered to pay a civil fine under the conditions provided for in Article 628 (Art. 1029, para. 3, CPC). The decisions made by the first president pursuant to these provisions, which solely aim to authorize the continuation of forgery proceedings, do not resolve any serious dispute and lack any authority of res judicata . When it authorizes forgery proceedings, the order is served on the defendant within fifteen days, with a summons to declare whether he intends to use the document alleged to be forged, to which a copy of the application and the first president's order must be attached (Art. 1030 CPC).

Finally, the defendant must serve the claimant, within a period of fifteen days, with notice of whether they intend to use the document alleged to be forged (Art. 1031, para. 1, Code of Civil Procedure). In the first case, or if no response is given within the fifteen-day period, the first president refers the parties to the court he designates to rule on the claim of forgery (Art. 1031, para. 2). According to the Court of Cassation, the provisions of Article 1031 derogate from the provisions of Article 306 concerning a plea of forgery raised before the Judicial Court or the Court of Appeal  and Article 313 concerning a claim of forgery before a jurisdiction other than the Judicial Court or the Court of Appeal .

Cass. soc., 29 September 1988, LawLex202400002359JBJ, specifying that Article 1028 of the Code of Civil Procedure only authorizes the parties to file a claim of forgery before the Court of Cassation against a document produced before it, so they cannot act in forgery against a document produced before the trial courts, except through the application for judicial review provided for by Articles 593 et seq.; 9 October 1997, LawLex202400002358JBJ: a claim of forgery directed against a judgment whose statements are deemed authentic until proven otherwise cannot be made by means of an appeal to the Court of Cassation, the applicant must submit a claim of forgery to the first president of the Court of Cassation in the forms provided for in Articles 1028 et seq. of the Code of Civil Procedure.

Cass. 2e civ., 13 January 1971, LawLex202400002368JBJ, holding that the order of the First President of the Court of Cassation rejecting the claim of forgery is not subject to any remedies, so that the appeal to the Court of Cassation filed against this order is inadmissible.

Cass. 2e civ., 22 September 2005, LawLex202400003851JBJ, adding that the existence of an appeal to the Court of Cassation and the referral to the First President of the Court of Cassation of a claim of forgery against a document submitted before the Court do not remove from the jurisdiction that rendered the decision subject to appeal the possibility of rectifying it.

Cass. 2e civ., 22 May 2008, LawLex202400002360JBJ: the provisions of Article 1031 of the Code of Civil Procedure, which govern the incident of forgery before the Court of Cassation, derogate from the provisions of Article 306, according to which the registration of forgery raised before the Judicial Court or the Court of Appeal is made by a document submitted to the court registry by the party or its representative with a special power of attorney. The document, prepared in duplicate, must, on pain of inadmissibility, precisely set out the grounds that the party invokes to establish the forgery. One of the copies is immediately filed in the case file, and the other, dated and endorsed by the court clerk, is returned to the party for the purpose of notifying the registration to the defendant. The notification must be made by service between lawyers or service to the opposing party within one month of the registration.

Cass. 2e civ., 20 July 1988, LawLex202300005904JBJ: Article 1031 of the Code of Civil Procedure relating to the claim of forgery before the Court of Cassation derogates from Article 313, according to which, when the incident is raised before a jurisdiction other than the Judicial Court or the Court of Appeal, judgment is stayed until the judgment on the forgery, unless the disputed document is excluded from the debate when it can be ruled on the merits without considering it, with the registration of forgery being carried out as stated in Articles 314 to 316, and the act of registration of forgery must be submitted to the registry of the Judicial Court within one month of the decision to stay judgment, failing which the incident is disregarded and the disputed document is deemed recognized between the parties.

4. Proceedings before the Court of Cassation

30. Claim of forgery

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Les décisions de justice citées dans ce paragraphe :

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30. Claim of forgery

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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