THE FRENCH LEGAL SYSTEM Nelya Bezhan IL - 405
Agenda : 1. The nature of legal systems; 2. The origins of the French legal system; 3. The making of law; 4. The two branches of French law; 4. 1 Private law - le droit privé; 4. 2 Public law - le droit public; 5. Ongoing reforms ; 6. Getting a lawyer in France.
1. The nature of legal systems Unlike English-speaking countries, which use a system of "Common Law", France has a system of "Civil law". Common law systems are ones that have evolved over the ages, and are largely based on consensus and precedent. Civil law systems are largely based on a Code of Law. Worldwide, Common Law forms the basis of the law in most English-speaking countries, whereas Civil law systems prevail in most of the rest of the world, with the notable exception of many Islamic nations and China. In line with the democratic principle of the separation of powers, the French judiciary - although its members are state employees - is independent of the legislative authority (government).
2. The origins of the French legal system • The basis of the French legal system is laid out in a key document originally drawn up in 1804, and known as the Code Civil, or Code Napoléon, (Civil code or Napoleonic code) which laid down the rights and obligations of citizens, and the laws of property, contract, inheritance, etc. .
• Essentially, it was an adaptation to the needs of nineteenthcentury France of the principles of Roman law and customary law. The Code Civil remains the cornerstone of French law to this day, though it has been updated and extended many times to take account of changing society. There are other codes, including notably the Code Pénal, or Penal code, which defines criminal law.
3. The making of law Laws in France, as in other democratic countries, are generally proposed by the Government of the day, and must be passed by the two houses of the French Parliment, the National Assembly and the Senate. They become law as from the date on which they have been passed by Parliament, signed into law by the President, and published in the Journal Officiel, or Official Journal. Statutory instruments (décrets, ordonnances) become law on signing by the minister(s), and being published in the Journal Officiel. Publication in the electronic version of the J. O. is sufficient.
4. The two branches of French law Unlike the English-speaking countries, France has a dual legal system; one branch, known as Droit public, or Public law, defines the principles of operation of the state and public bodies. This law is applied generally through public law courts, known as les Tribunaux administratifs. The other system, known as Droit privé, or private law, applies to private individuals and private bodies.
4. 1. Private law - le droit privé This is the basic law of the land. It is administered through the judicial courts. There are two judicial channels, a) those dealing with civil litigation, and b) those dealing with criminal offences a) Basic civil litigation concerning private individuals is dealt with by a local court, known as a Tribunal d'Instance, or by a regional or departmental court known as a Tribunal de Grande Instance (TGI), depending on the importance of the case. Commercial and business law is administered through institutions known as Tribunaux de commerce. These are known as "first degree courts".
Appeals are heard in a Cour d'Appel or Court of Appeal, a "second degree court". In France, there is a fundamental right of appeal in all cases. In exceptional circumstances, judgements of the Appeal Court can be contested at the highest level, the Cour de Cassation, the French Supreme Court in matters of private law.
b) Everyday offences and petty criminal matters are generally dealt with either by a Juge de proximité (a local magistrate) or a Tribunal de Police (police court); more serious matters will be referred to the Tribunal Correctionnel, the criminal law equivalent of the TGI. The most serious criminal offences, notably murder and rape, will be referred to a Cour d'Assises, or Assize court, where they will tried by jury.
4. 2. Public law - le droit public Complaints or litigation concerning public officials in the exercise of their office are heard in Tribunaux Administratifs, or Administrative Courts. For example, universities or public academic institutions are regularly taken to court over claimed irregularities in the organisation of exams. As in the private law system, appeals can be lodged, in this case with the Cour administratif d'appel, or Administrative appeals court. The highest echelon, the Supreme Court for public law, is the Conseil d'Etat, or Council of State, the body ultimately responsible for determining the legality of administrative measures.
5. Ongoing reforms In 2008, President Sarkozy announced plans to further reform and streamline the French judiciary. Among the reforms are plans to reduce the number of courts, move court procedures towards a more adversarial system, and to get rid of the system of avoués in the courts of appeal. This change has not yet been implemented.
One reform recently tried out in a couple of Tribunaux correctionnels (criminal courts) was the introduction of trial by jury, previously limited to the assize courts. Juries in this case were made up of six members of the public, and three magistrates. But in 2013, the socialist administration of François Hollande decided to scrap this reform, claiming the process was expensive, slowed down the judicial procedure, and did not produce any significant change in results.
Getting a lawyer in France • If you wish to take legal action against someone or against an institution, if someone is taking legal action against you (civil litigation), or if criminal charges have been brought against you (for example for reckless driving), you may need to find a lawyer (trouver un avocat). .
