Comparative Law
Spring 2002
Professor Susanna Fischer
CLASS 23
FRENCH COURT STRUCTURE
CIVIL AND CRIMINAL COURTS
March 11, 2002
Wrap-up: German Court
Structure
The German court system has a much
greater degree of specialization than
the U.S. system.
There are 5 different hierarchies of
courts with different areas of
jurisdiction (ordinary, administrative,
labor, social, fiscal). There are also
constitutional courts
Wrap-up: German Court
Structure
There are both Land and federal courts.
The lower courts in each hierarchy are
Land courts; the higher courts are
Federal. Courts are thus located
throughout the country.
The idea of a specialized and
decentralized court system is to make
justice more accessible and faster.
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 Separation
1958 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 law
2. 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
instance
Other 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 COURTS
What are the two courts of first instance
within the territorial jurisdiction of each
French Court of Appeal?
1. Tribunal d’instance
2. 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 less
TRIBUNAL DE GRANDE
INSTANCE
181 of these in metropolitan France and
overseas territories
Have 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 judges
Single 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 TGI
Besides 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’instance
Tribunal de commerce
Conseil de prud’hommes
Tribunaux des affaires de sécurité
sociale
Tribunaux paritaires des baux ruraux
Tribunal d’Instance
473 of these courts – usually corresponds to
arrondissement, adminstrative subdivision of
département
Has 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’Appel
Have 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 bankruptcy
The 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 term
A prosecutor held by the procureur de la
Republique of the relevant TGI
Also 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 procedure
Now appeal always possible
What 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. Next
election: Dec. 2002
267 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 a 3720 EUROS 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 elected
Hears social security disputes involving
e.g. contribution and benefit
Tribunaux paritaires des baux ruraux
(Agricultural Land Tribunals)
Created in 1994
Hears disputes between agricultural landlords
and tenants -without appeal up to 3800 EUR
Has 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 peers
Territorial jurisdiction is similar to tribunal
d’instance
Can 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 Court
Otherwise, 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.