Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW.jjkhjhhil

WORLD LEGAL SYSTEMS

TOPIC: FRENCH LEGAL SYSTEM

SUBMITTED TO:SUBMITTED BY:

Mr. MALAY PANDEY, AKANKSHA SACHAN,
ASSISTANT PROFESSOR (LAW), ROLL NO. 14,
Dr. RMLNLU, LUCKNOW.SECTION A/ SEM I.
ACKNOWLEDGEMENT
During the preparation of this project, I was helped immensely by my friends at the
University as they played a vital role being a part of this project.The corporation
which I received from them must be acknowledged.

I would also like to thank Mr. Malay Pandey, his charismatic personality and his
great knowledge in the subject and interesting lectures were the driving force for
the completion of this project.

I would also extend a sincere thanks to Vice Chancellor, Prof. (Dr.) Gurdip Singh
and Dean (Academics),Prof. C.M.Jariwala for their encouragement andenthusiasm.
My seniors for sharing their valuable tips and constant support.

.
 TABLE OF CONTENTS
INTRODUCTION
JUDICIAL SETUP
The Judicial Branch
First Degree of Jurisdiction
COURTS UNDER THE LEGAL SYSTEM
Court of Appeal
Court of Cassation
PROCESS OF TRIAL
THE COUNCIL OF STATE
THE ADJUDICATORS
CONCLUSION
BIBLIOGRAPHY
INTRODUCTION
As the means for obtaining judicial enforcement of the rights that persons may
assert,civil procedure is fundamentally the law governing judicial resolution of
disputes within civil society. More technically, it may be defined as the set of legal
rules regulating the organization and functioning of the courts of law competent for
settling disputes affecting private interests. This lecture presents the organization
of civil justice and the main features of civil procedure, followed by an indication
of the trends that are today driving the evolution of the French civil procedure.

France has a legal system stemming from Roman law and based upon codified
laws. The Civil Code was drafted in 1804 under Napoleon I. Nevertheless judges
have the duty to interpret the law and the decisions of the higher courts have a
certain influence on the inferior courts even if they are not bound by any higher
courts decision. The last time a death penalty was issued in France was in 1978. It
was then officially prohibited in October 1981.

The Parliament, both National Assembly and Senate, decided in February 2007, to
amend the French Constitution in order to include an explicit ban of the death
penalty. The constitutional statement that No-one shall be sentenced to death
makes France the 17th country worldwide to include prohibition of the death
penalty in its Constitution.

The judiciary is independent from the executive and the legislative powers. There
are several categories of courts divided into two major branches, a Judicial branch
and an Administrative branch.
 THE JUDICIAL SETUP
THE JUDICIAL BRANCH

The civil courts settle private disputes between individuals such as divorce,
inheritance, property but do not impose penalties. The criminal courts judge
individuals who have committed offences.

FIRST DEGREE OF JURISDICTION

The District courts Tribunaux de instance have jurisdiction for civil matters. They
hear personal property claims under 10,000 euro as well as claims for which they
have exclusive jurisdiction. They have a criminal division which is the Police
Court Tribunal de Police, which handles misdemeanors in five classes, exclusively
with fines. For petty offences (for classes one to four) and some civil issues under
4,000 euro it may be a lay judge Juge de proximit or a professional judge who
hears the case. For both civil and criminal issues, cases are tried by a judge sitting
alone.

Another first instance court is the District Courtwhich is the successor to the
former justices of the peace and is competent to hear small civil claims (such as
disputes with neighbors, land-lease cases, and litigation over debts of less than 10
000 euros). As a rule, the territorial jurisdiction of the district court extends over
several cantons, or districts, which are the territorial subdivisions of the
departments. Usually the district court takes the arrondissement, comprising
severaldistricts, as its territorial reference. District courts are 305 in number. Since
the law of 9 September 2002, there have also existed judges for very small civil
claims who are in charge of controversies in an amount of less than 4,000 euros.
These 305 courts also have jurisdiction over injunctions to pay or to perform up to
the same monetary amount. The proximity court is in theory a full-fledged court.
The commercial courts, Tribunaux de commerce,are the oldest courts in the
Frenchjudicial organization, dating back to the end of the Middle Ages. Today they
number 135. A specifically French institution, the commercial court is a collegial
court composed exclusively of merchants elected by their peers.
The labor courts, Conseil de prudhommes, whose origin dates back to the
beginning of the 19th Century, resolves individual disputes arising out of an
employment or apprenticeshipcontract. It first attempts conciliation, but if
conciliation cannot be achieved, the dispute willbe resolved by a judgment. There
are today 210 labor courts. Members of the labor court are elected, with an even
number of judges. Half the members represent employers, and half represent
employees.
Two other courts of specialized jurisdiction, both staffed entirely by ordinary
citizens and known as Juridictionschevinales, were created in the middle of the
20th Century. These are the Social Security Courts (Tribunaux des affaires de
scuritsociale), numbering 116, and having jurisdiction over disputes involving
social security, such as participation in a social security plan and payments of
contributions and benefits, and the mixed courts for rural leases
(Tribunauxparitaires des bauxruraux), numbering 305, and, as their name
suggests, having jurisdiction over cases involving rural leases among landowners
and farmers.

COURTS UNDER THE LEGAL SYSTEM

COURT OF APPEAL
The right of appeal had very early beginnings, but its rationale has varied over
time. Under the Ancien Rgime, before the French Revolution (1789), the appeal
was essentially a response to preoccupations of a political nature. Due to the
variety in levels of courts (royal, feudal, and ecclesiastical), a judicial decision
could be subject to a multitude of successive appeals designed to gradually bring
cases within the immediate sphere of the royal power.
The appeal thus served a political purpose, as an instrument for the consolidation
of royal power against both the aristocracy and the Church. The belief in
separation of powers, coupled with a desire to deny any political role to judges, led
the revolutionary Parliament to disavow any such political rationale in favor of
technical considerations. The appeal thus came to represent a guarantee of good
justice, and for that it would be sufficient that the case be tried twice. The appeal
permitted reformation or nullification of the judgment against which it was
brought. And so it was usually brought before a court higher than the court of
first instance, namely the Court of Appeal.
In civil matters, every litigant has the right to a second level of review of a case if
he fails at the first level. It really is a second level, both because it is the last level
and because one can access it only after the first proceeding has been exhausted.
But even this principle is not absolute. Frequently, access to this second level is
unavailable. A litigant may, under certain conditions, renounce the appeal. Statute
may also bar access to this second level of review due to the small amount in
controversy (4000 euros) or due to the particular nature of the litigation (e.g.,
election disputes). In principle, appeal is brought before one of the 35 Courts of
Appeal, constituting the courts of ordinary and general jurisdiction at the second
level ofreview. It is only in rare situations that the appeal is brought before another
tribunal, such the national disabilities court (Cournationale de lincapacit) for
technical litigation in the field of social security.

COURT OF CASSATION
The last degree of jurisdiction is the Court of Cassation. It is the Highest Court in
the French Judicial system. It is the Court of last resort which sits in the Hall of
justice in Paris. It succeeded to the Tribunal of Cassation created in 1790. The
Court of Cassation does not judge on the facts but checks whether the laws have
been properly applied by the inferior courts in civil and criminal matters. It never
sits as an appeal court. Its decisions allow a certain unity regarding the application
of laws even if the decisions do not bind inferior courts. Since 1991, the Court of
Cassation also gives its opinion to the other jurisdictions on new and complex law
issues. The Court of Cassation consists of judgesconseillers, the Office of the
Prosecutor, an Administrative Office of Courts, Higher Council of the Judiciary
and specially certified barristers. The judges of the Court of Cassation include the
First President premier president, first presidents of the chambers,
justicesconseillers and assistant judges conseillersrfrendaires. The First President
is responsible for the court administration and the discipline of judges along with
judicial functions. The judges are appointed by the President of the Republic on a
recommendation of the Higher Council of the Judiciary. They are divided into six
different chambers: First Civil Chamber, Second Civil Chamber, Third Civil
Chamber, Labor Chamber, Commercial Chamber, and Criminal Division. Each
division is headed by a Presiding judge.

THE PROCESS OF TRIAL

The forums of trial defer depending upon the seriousness of the offence.
The Tribunal de police comprises just one judge, the Tribunal correctionnela
bench of three judges (although in certain situations listed in the code of procedure
the court will be comprised of just one judge), and the Cour de assisesis a jury of
nine sitting with three judges. In cases before the Cour de assises, the judges will
have studied the case dossier prior to trial and the presiding judge will have the
dossier on the bench throughout the trial. The jurors have no access to the dossier.
In the French system of trial which is inquisitorial there is no plea of guiltyas is
done in the adversarial system of trial. The court must be satisfied of the accuseds
guilt. However, since 2004 there has been a procedure of plea bargaining whereby
the defendant will appear in court following a prior admission of guilt that may
only be made with the assistance of a lawyer. Even in such casethe presiding judge
will review the genuineness of the facts before registering the declaration of guilt
by the accused and penalty suggested by the prosecutor. Eventhough the judge
cannot alter a suggested penalty, he can and must accept or reject it. This
procedure is in respect of cases where the punishment is maximum sentence of 5
years of imprisonment.

THE COUNCIL OF STATE

(CONSEIL DE ETAT)
The Council of State, created in 1799, by Nepoleon Bonaparte as a successor to the
Kings Council, acts both as legal advisor of the executive branch and as the
Supreme Court for administrative justice.
A General Session of the Council of States is presided over by the Prime Minister
or in his absence by the Minister of Justice. However, since the real presidency of
the Council is held by the Vice President, he usually presides all but the most
ceremonial assemblies. This is done for the obvious reasons pertaining to
separation of powers.

THE COUNCIL OF STATE AS AN INSTANCE OF FIRST AND

LAST RESORT:
The first resort competence of the Council of State covers litigation of special
importance (decrees, ministerial acts, the decisions of collegial bodies invested
with national competence, individual measures involving civil servants appointed
by Presidential decree) or whose scope exceeds the competence of an
administrative court. In addition, the Council of State deals directly with litigation
over county council elections or elections to the European Parliament.
Approximately 17% of the cases submitted to the Council of State fall within its
competence of first resort.

THE COUNCIL OF STATE AS A COURT OF APPEAL:

The competence of the Council of State as a court of appeal has progressively been
transferred to the administrative courts of appeal and is now limited to litigations
over local and cantonal elections and appeal over assessment of legality.
 THE COUNCIL OF STATE AS A COURT OF CASSATION:
The Council of State exercises traditional powers as a court of cassation in relation
to some 30 specialized courts, the most important of which are the Cour des
Comptes, the Court of Budgetary and Financial Discipline, the Magistrates
Disciplinary Committee, and the disciplinary committees of various professions.
Since the 1987 reforms, the Council of State has had powers to quash rulings
delivered by the administrative courts of appeal. This expansion of its powers was
accompanied by a major change in the rules governing appeal to the highest court.
On the one hand, a special procedure allows for the dismissal of appeals
considered inadmissible or insufficiently grounded; on the other hand,
aftercassation, the Council of State can judge the case as a third court of instance
if the sound administration of justice justifies it and thus act as the equivalent
of a Supreme court in common law systems.
COMPOSITION OF THE COUNCIL OF STATE
The Council of State has a very specific composition compared to other
jurisdictions. Indeed, it is made up of state advisors, who are civil servants with a
specific status guaranteeing their independence. The Council of State is presided
over by the Prime Minister; the vice-President is the Garde des Sceaux (Minister
of Justice).
THE COUNCIL OF STATE AS GOVERNMENT ADVISOR
The oldest function of the Council of State is its role of advisor to the government.
The Council examines and gives its opinion on bills and projects of decrees and
by-laws. This consultative work represents approximately half of its work.

THE CONFLICTS TRIBUNAL

The existence of the two systems of jurisdiction outlined above sometimes results
in difficulties in determining their respective powers, and thus justifies the
arbitration of the Conflicts Tribunal which was set up by the law of May 24th
1872. Presided over by the Garde des Sceaux the Minister of Justice the
Conflicts Tribunal is composed of eight members elected for a three-year term.
Today, the frontiers between the judicial and administrative branches have become
stable and only about forty cases are submitted to the Conflicts Tribunal each year.
However, its jurisprudence has been the most important building-block of French
public law. It is not possible to appeal against the judgments of the Conflicts
Tribunal.
 THE ADJUDICATORS
JUDGES
Judges have an active position in the trial: they are more than just arbitrators. They
lead the hearing. The Act of 22 December 1958 establishes the status of the
judiciary. Every judge may be appointed during his career at judging functions
and/ or at the office of the prosecutor (principle of unity of the judiciary). Unlike
prosecutors, judges are not submitted to the hierarchical principle and have
security of tenure, that is to say that any new assignment requires consent. Judges
and prosecutors follow the same training within the same school. On 1 January
2009, we had 8481 magistrates.

LAY JUDGES
Established in 2002, lay Judges are not professional judges, they are appointed
by the legal profession by decree after the approval of the Higher Council of the
Judiciary (CSM) for 7 years, not renewable. They exercise certain functions of
judges in criminal or civil matters. In May 2009, there were 618 lay judges.

PROSECUTORS
Contrary to the sitting judges who are completely independent when they judge
cases, public prosecutors are under the authority of the minister of justice. The
minister of justice conducts the policy of prosecution determined by the
Government. He or she ensures that the application of such a policy in the territory
of the Republic is coherent by addressing general instructions on prosecution to the
general prosecutors. There is a hierarchy within the prosecution service: the
Procureurs de la Rpublique (first level) are under the authority of the
ProcureursGnraux(court of appeal) who can give them instructions regarding
the general functioning of their offices and the policy of their jurisdiction and also
the decisions to take in a particular case, if deemed necessary. The
ProcureursGnraux report directly to the Minister of Justice.
 CONCLUSION

The French legal system is based entirely on written civil law. The system of
administrative law was laid down by Napoleon and is appropriately called the code
Napolon (Napoleonic code). The code governs all branches of French law and
includes the code civil, the code fiscal and the code penal.
Its regularly updated.France has two judicial systems: administrative and
judiciary. The administrative system deals with disputes between the government
and individuals, while the judiciary handles civil and criminal cases. France
doesnt have a jury system (abolished in 1941) but a mixed tribunal made up of six
lay judges and three professional judges, with convictions decided by a two-thirds
majority. However, in the courdassises, nine ordinary citizens make up a jury
populaire.
Under the French criminal law system, cases are heard by a variety of courts,
depending on the severity of the alleged offence. Civil courts include a tribunal
dinstance (for small claims, up to around 5,000), a tribunal de commerce (for
commercial disputes), a tribunal de scuritsociale (for disputes over social
security payments), a tribunal de grande instance (for cases relating to divorce
and adoption, etc. as well as some criminal cases) and a conseil de
prudhommes (an arbitration service for labour disputes). Criminal courts include
a tribunal de police (for minor contraventions such as parking fines), a tribunal
correctionnel (for more serious offences), a courdassises (for major cases) and
a coursdappel (for appeals; the supreme appeal court is the Cour de Cassation). A
new kind of judge called a juge de proximit, created in September 2002, can deal
with claims worth up to 1,500.
BIBLIOGRAPHY
BOOKS:
SELECT CONSTITUTIONS OF THE WORLD
-M.V.PYLEE
INTRODUCTION TO FRENCH CIVIL JUSTICE SYSTEM
AND CIVIL PROCEDURAL LAW
-LOC CADIET

WEBSITES:
www.justice.gouv.fr
www.shodhganga.inflibnet.ac.in