COMPARATIVE LAW 2003

CLASS 12FRENCH LEGAL TRAINING CONT’DFRENCH COURT STRUCTURECIVIL AND CRIMINAL COURTSFeb. 27, 2003

Becoming an Avocat

Masters degree in Law (maitrise en droit) – around 50% failure rate in first yearFollowed by Professional Stage – if you pass an entrance exam you study at a regional bar school and if you pass the final exam you obtan the CAPA2 year period of “apprenticeship” as avocat stagiaireAdmission

Bar Association

Avocats must be a member of a local Bar Association (barreau) – 1 per each local Tribunal de Grande InstanceThere is also a National Bar CouncilOf the approximately 33,000 avocats, 13,000 are members of the barreau de Paris.

Becoming an Avocat aux Conseils

Remember: these have a monopoly on right to represent clients before Cour de Cassation and Conseil d’EtatThey hold a public officeThere are about 90 of these avocats aux conseilsHow do you become an avocat aux conseils?

Becoming an Avocat aux Conseils

AppointedNeed maîtrise en droit (or equivalent)3 year training course given by IFRAC (Institut de Formation et de Recherche des Avocats au Conseil), which includes practical training and classroom instructiionsOral/written qualifying examination

Becoming an Avoué près des Cours d’Appel

Remember: there used to be a separate profession of avoué who were similar to British solicitors, but in 1971 almost all were merged with avocatsBut the separate profession was retained for proceedings before the 30 Cours d’AppelWhy?

Becoming an Avoué près des Courts d’Appel

But the separate profession was retained for proceedings before the 30 Cours d’AppelWhy? Justification is that appellate court proceedings are quite complex.There are about 300-400 avoués; around 120 of them are womenHow do you become an avoué?

Becoming an Avoué près des Courts d’Appel

How do you become an avoué?Need at least license en droitMust complete 2 year period of practical training with avoué.Must pass professional examination (largely on procedure)If successful, enroll with court of appeal

Becoming a Judge

Unlike England (or at least in part, the United States), judges are not always or mainly appointed from the ranks of experienced advocatesDoes this surprise you?

Becoming a Judge

French procedure requires that judges exercise different functions than judges in common law systems with adversarial trials

Career JudiciaryMost judges in regular court system are graduates of the Ecole Nationale de la Magistrature in Bordeaux (ENM)Administrative judges generally graduate from Ecole National D’Administration (based Paris and Strasbourg)Some judges come out of the civil service, or academics, some from ranks of advocatesLay judges

ENMOpen to French nationals or EU nationals who have the University maîtrise degree (not necessarily in law) or, inter alia, 4 years civil service experience or 8 years experience in a courtAge limits – up to 27 or 40 depending on prior experienceCompetitive extrance exam (concours) or proof of 3 years legal experience as avocatsWomen comprise 65% of applicantsDirect recruitment of judges is possible; law professors can be seconded for 5 year non-renewable periods

ENM

31 months training – includes academic study, placement with company/administrative body, and 1 year period spent working at a courtFinal examination. Best results (in exam together with work in placement) give you better choice of position.

ENA

Created in 1945 to train students for top careers in the administrationOpen to those with law degree or certain experience (e.g. civil service, trade unions)Competitive entrance exam3 year courseHas period of practical trainingFiinal exam

Huissier de Justice

These have a monopoly over certain mainly procedural functions like service of writs and execution of judges (like bailiffs). They also act as court ushers. They may also perform certain fact investigations for the courts.There are around 2500 of them.How do you become a huissier de justice?

Huissier de Justice

How do you become a huissier de justice?Get a masters degree in law, work for 2 years as a stagiaire (sometimes some time is cut off depending on prior experience), and pass professional examinationIt is recommended for most candidates that they attend ENP (l’Ecole Nationale de Procedure)

Notaire

What is a notaire?How do you become a notaire?

Notaire

They are public officers who draft/give authenticity to certain documents that require formality under the law (such as marriage contracts and real property deeds). You also usually hire a notaire to make a will, or to advise family members on financial mattersThere are about 8,000 notaires

Training to Become a Notaire

Need a maîtrise en droit2 routes (academic, or professional)Academic: 1 year DESS in Notarial Law followed by 2 years practical training as notaire stagiaire with continual assessment/dissertationProfessional: Entry exam, 12 month course, final exam, followed by 2 years training with no additional assessment

Separation of French Ordinary and Administrative Courts

Why is there a separation between ordinary (ordre judiciare) and administrative courts (ordre administratif) in the French system?

Separation of French Ordinary and Administrative Courts

The philosophical reason: The separation of ordinary and administrative courts is an application of the doctrine of the separation of powers. French revolutionaries, influenced by Montesquieu, believed that disputes about the exercise of the executive power should not be heard by the judiciary because this would subjugate the executive branch to the judicial branch.

Separation of French Ordinary and Administrative Courts

The cynical reason: Revolutionaries did not trust the judiciary, remembering the problems the kings of France had had with the conservative opposition of the Parlements.The separate court systems have a legal basis in statute and constitutional law.

Legal Basis for Separation of Administrative and Ordinary Courts

August 16-24, 1790 Act (Still in force today): The competences of the judiciary are and remain distinct and separate from those of the administration. Judges shall not interfere with the exercise of administrative powers nor summon administrators to appear before them in order to account for their functions. To do so could be regarded as an abuse of judicial authority.

Legal Basis for Separation of Administrative and Ordinary Courts

Décret of 16 Fructidor An III (1795) (Still in force today): Courts are constantly forbidden from subjecting administrative acts, whatever their nature, to judicial review.At the time these laws were enacted, there was no special court that could review administrative acts. What court eventually gets the power to do this?

Conseil d’Etat

In 1800 Conseil d’Etat was created, but it was not yet a real judicial body. It had only limited judicial powers and could only suggest legal solutions to the Head of State.It was not until 1872 that the Conseil d’Etat was recognized as a court with the power to review the administration.

Constitutional Basis for Separation1958 Constitution Title VIII expressly provides for an independent system of ordinary courts.1958 Constitution does not provide expressly for administrative courts, but the Conseil Constitutionnel has found the dual system constitutional. In decisions of July 22, 1980 and January 23, 1987, the Conseil Constitutionnel found the existence of a system of administrative courts with powers to judicially review administrative acts was based on fundamental principles recognized by the laws of the Republic.

Ordre Judiciaire

2 functions of the ordinary courts:1. Civil – they adjudicate disputes between individuals under civil private law2. Criminal – pass sentences against those who have committed offences under criminal law.Do different ordinary courts exercise these civil and criminal functions separately?

Ordre Judiciaire

No – the same court will exercise civil and criminal functions jointly. For example, the tribunal d’instance hears minor civil law disputes, and the same court, sitting as tribunal de police, hears minor criminal offences.In some very low level courts, the same judge may sit either as a criminal or a civil judge

Jurisdictions de droit commun et d’exception

Some courts have general jurisdiction to hear all cases other than those where jurisdiction has been expressly allocated by statute. They are jurisdictions de droit commun – what is an example?Other courts are jurisdictions d’exception – they can only hear cases of the kind allocated to them by statute. What is an example?Does the American system have such a distinction between courts of general and limited jurisdiction? Give some examples.

Jurisdictions de droit commun et d’exception

Some courts have general jurisdiction to hear all cases other than those where jurisdiction has been expressly allocated by statute. They are jurisdictions de droit commun – what is an example? Tribunal de grande instanceOther courts are jurisdictions d’exception – they can only hear cases of the kind allocated to them by statute. What is an example? Tribunal de commerce, conseil de prud’hommes

FRENCH GENERAL CIVIL COURTS

What are the two civil courts of first instance within the territorial jurisdiction of each French Court of Appeal?(See the Code de l’Organisation Judiciaire (COJ)

GENERAL CIVIL COURTSWhat are the two courts of first instance within the territorial jurisdiction of each French Court of Appeal?1. Tribunal d’instance2. Tribunal de grande instance (court of general jurisdiction – can generally try cases within territorial jurisdiction unless allocated by statute to specialist courts (e.g. commercial, employment) or less than 7,600 EUR in which case must be heard by Tribunal d’instance)Both created in 1958

JURISDICTION OF TRIBUNAL DE GRANDE INSTANCE

Usually D’s home actor sequitur forum rei Some exceptions e.g. property dispute where property is located, tort where P can choose where D lives or where damage occurs, contract where P can choose where D lives or where contract carried out

EXCLUSIVE JURISDICTION OF TRIBUNAL DE GRANDE INSTANCE

Exclusive jurisdiction over marriage, divorce, road accidents etc…Right of appeal to Cour d’Appel except where case falls within these areas of exclusive jurisdiction and matter in dispute is 3800 EUR or lessIf 3800 EUR or less the only appeal is to the Cour de Cassation

TRIBUNAL DE GRANDE INSTANCE

183 of these in metropolitan France and overseas territoriesHave at least 1 president and 2 judges; if more than 5 judges (like Paris, Marseilles, Nanterre), it is divided up into 2 chambres and judges specialize (but rotate). Usually sit in open court with 3 judgesSingle judges can adjudicate certain cases, e.g. juvenile offenders, road accidents, matrimonial issues, enforcement of judgments

TRIBUNAL DE GRANDE INSTANCE

Remember – an advocate must represent a client in the TGIBesides judges, TGI also have parquet (prosecution), which consists of the procureur de la République and 1 or 2 substituts. Administrative work of the court is carried out by the secretariat-greffe

SPECIALIZED CIVIL ORDINARY COURTS

What are some of the civil ordinary courts with specialized jurisdiction?

SPECIALIZED CIVIL ORDINARY COURTS

Tribunal d’instanceTribunal de commerceConseil de prud’hommesTribunaux des affaires de sécurité socialeTribunaux paritaires des baux ruraux

Tribunal d’Instance473 of these courts – usually corresponds to arrondissement, adminstrative subdivision of départementHas certain exclusive jurisdiction, e.g. cases involving residential leases etc.Hears small civil cases about persons and property (not land and buildings) up to 3800 EUR without appeal (like a small claims court) and up to 7600 EUR subject to appeal to Cour d’AppelHave multiple judges, but cases are heard by 1 judge - lent from TGI or part-time.

Tribunal de commerce (Commercial Court)

This court deals with disputes relating to trade and commerce, as well as bankruptcyThe unpaid lay judges from business community are elected by an electoral college of representatives elected from the local business community.Elected for 2 years and then for 4 years for almost indefinite termA prosecutor held by the procureur de la Republique of the relevant TGIAlso a greffier

Tribunal de commerce (Commercial Court)

Jurisdiction – where D is domiciled, or where contract performed.There are 227 of these courts. Note that some areas of France (like Haute Savoie) don’t have a Tribunal de commerce - the TGI will hear commercial cases there.Informal procedureNow appeal always possibleWhat are the pros and cons of French commercial courts?

Conseil de prud’hommes (Industrial Tribunal)

Hear disputes in the area of labor law (dismissal, but not collective bargaining or cases involving civil servants)The court is composed of representatives of employers and employees (you can be involuntarily unemployed), who are elected every 5 years by all workers/empoyers. Last election: Dec. 2002267 tribunals

Jurisdiction of conseil de prud’hommes

Often have 5 sections of 8 members each – each section for different sectors of economy: management, industry, agriculture, commerce, miscellaneous

Court where work is carried out usually has jurisdiction

Judgments up to 3720 EURbS are not appealable

Tribunaux des affaires de sécurité sociale (Social Security Tribunal)

Has 3 judges, 2 lay assessors (one representing employers and one representing employees) and one judge from the TGI who acts as president.Lay assessors are not electedHears social security disputes involving e.g. contribution and benefit

Tribunaux paritaires des baux ruraux

(Agricultural Land Tribunals)Created in 1994Hears disputes between agricultural landlords and tenants -without appeal up to 3800 EURHas 5 members: President (a judge from Tribunal d’instance) plus 4 lay assessors (2 are representatives of tenants and 2 of landlords) who are elected by their peersTerritorial jurisdiction is similar to tribunal d’instanceCan sit as single judge court or as full bench divided into 2 divisions (sharecropping and leasehold rents).

Legal Representation in Court

Parties may only represent themselves before certain courts. Parties need to be represented by an avocat before the Tribunal de grande instance, the Cour d'appel, the Cour de cassation and the Conseil d'Etat (except in the case of labor disputes, where parties can represent themselves before the Cour d'appel and the Cour de cassation.

Legal Representation in CourtOtherwise, as a rule, parties may represent themselves before the courts or instruct third parties to do so. Anyone can be instructed to represent a party before the Commercial Courts, a party may instruct anyone to represent them.More limitations on third party representation before the Tribunal d'instance: e.g. a spouse, significant other, parent.Before conseil de prud’hommes, usually represented by attorneys, union officials, or trade associations.

Wrap-up: French Court Structure

There is a separation between ordinary and administrative courts in France, based on the idea of separation of powers.The TGI is the civil court of general jurisdictionThere are also a number of civil courts with limited jurisdiction: Industrial tribunal, Social Security Tribunal, Commercial Court, Agricultural Land Court, TI

Criminal CourtsNot all criminal cases go directly to trialThe most serious or complex (crimes or délits) are examined by a pretrial investigatory court (jurisdiction d’instruction)We’ll talk about these in the context of criminal procedureCases are tried by jurisdictions de jugement, which deliver either a conviction or acquittalLike civil system, there are courts of general jurisdiction and courts of limited jurisdiction

Criminal Courts

What are the French criminal courts of general jurisdiction?

Criminal First Instance Courts of General Jurisdiction

Tribunal de police (Police Court)Tribunal correctionelCour d’assises (Court of Assizes)Which first instance court hears a particular criminal case depends on the seriousness of the offence (infraction)

Tribunal de PoliceLimited to minor offenses (conrtraventions) publishable by small fine not exceeding 1500 EURLowest criminal court of general jurisdictionIt is the Tribunal d’instance sitting as a criminal courtJudge sits alone. Usually a specialist criminal judge though sometimes a judge that deals with both civil and criminal casesThere is a prosecutor – procureur de la République of the TGI

Tribunal correctionalThe Tribunal Correctionel hears slightly more serious offences (délits)This is the TGI exercising its criminal jurisdictionUsually 3 judges, but some offenses like check fraud, assault, criminal damage, or reckless driving (if D not in custody) can be adjudicated by a single judge (around 0% of total offenses)Jurisdiction is limited to délits committed within its territorial jurisdiction – more serious offenses like theft that publishable by sentence of imprisonment of up to 10 years and/or larger fines.

Cour d’assisesTries crimes (most serious crimes like murder carrying terms of imprisonment of 10 or more years)One per département; sits at least 1 of every 3 monthsNot just professional judges, but also a jury of 9 lay judges les jurés– so court is called the juridiction populaire (the people’s court)3 judges (President (Cour d’Appel judge)and 2 assessors)Just sits once every quarter unless more hearings are neededCan’t be appealed to Court of Appeal – just Cour deCassation. In contrast, appeal lies against decisions of Tribunals Correctionels as well as more serious cases in Tribunal de Police

Criminal Courts With Limited Jurisdiction

Cours d’assises spéciales: crimes against National securityJuvenile courts (juge des enfants, tribunal des enfants, court d’assises des mineurs) – in camera proceedingsMilitary courtsHaute Cour de Justice – can try President of Republic/ministers for high treason or serious crimes. No appeal against its decisions.

Courts of Appeal35 of theseAll disputes except minor civil disputes and criminal cases tried in the Cour d’Assises can be appealed to the Cour d’AppelAppeals are by way of rehearing of the case, and questions of law and of fact will be newly dealt with. Remember that you need to hire an avoué to represent you before the Cour d’Appel. You also need an avocat.

Courts of Appeal

Judges (conseillers) are experienced career judgesEach Cour d’Appel has at least 3 judges (2 conseillers and 1 President) but may have more; if so, divided into Chambres – usually Criminal, Civil, maybe Social, Commercial

Cour de Cassation

135 judges appointed by President of the Republic (president, 6 divisional presidents, 85 conseillers, 43 auxiliary judges, 18 auditeurs (young judges)The Cour de Cassation is the highest judicial body. It decides appeals on points of law and procedure and can set aside or quash judgments and remit cases for rehearing to one of the 35 Courts of Appeal

Cour de Cassation

Usually 5 judges hear the appeal in criminal cases unless president thinks case is straightforward and refers it to 3 judge benchIf a civil case, normally heard by 3 judges unless appeal is complex – then it is referred to 5 judge benchOnly avocats au Conseil d'Etat et à la Cour de cassation may plead before the Cour de Cassation