Court of appeal (France)

The Court of appeal is the highest Juridiction of the legal order French. It is the equivalent of the Council of State, which is the highest jurisdiction of the administrative order. It is a permanent jurisdiction, which sits 5, Quai de l'Horloge , with Paris.

The Court of appeal includes/understands 6 rooms (3 civil courts, a social room, a commercial room and a court of criminal appeal).

The Court of appeal is a Juge of the right: it takes care of the respect of the law. It can thus pronounce the Cassation of a legal decision. However, it is not a question of a third degree of jurisdiction: the Court takes again the facts such as they were establish by a lower jurisdiction, and has role only with regard to the application of the right to these facts.

Contrary to the other legal jurisdictions French, it has there only one Court of appeal for all France: it can thus make reign the unit of application and interpretation of the Droit on all the French territory.

Before the Court of appeal

The Court of appeal exists in its current design only since 1947. Previously, other comparable institutions existed, but they did not have to be able of interpretation of the law.

The Council of the parts

Conseil of the parts redirects here.

The French Court of appeal finds its origin in a section of the Conseil of the King, the “Council of the parts”, which had the role of examining in the name of the King the legal decisions returned by the Parlements. It was also in charge of the administrative dispute. Under the presidency of the chancellor, it was formed of the advisers of State and the Masters of the requests.

Until the law of July 22nd, 1947, the Court of appeal followed the procedure fixed by a payment of 1738. Between the two organizations, there existed however of great differences. A principle of the Ancien right wanted that the interpreter of a text can be only the author of this one. The king alone could interpret his ordinances and edicts, it did it in his Council - or its Council did it for him.

The Court of cassation

Tribunal of cassation redirects here.

Under the Revolution, the Council of the parts is removed, but replaced by a Tribunal of cassation , by the law of the November 27th - December 1st, 1790, is bearing institution of a court of cassation and regulating his composition, his organization and his attributions. The Court was placed directly under the control of the legislative Body: the Tiers State feared that the Magistrat S, indicated by the Ancien Mode, can interpret the new right, instituted by the Révolution, according to the interests of the Noblesse. The Jurisprudence - term which one should “banish of the French language” according to Robespierre - should thus be the pure and simple application of the law.

Any legal question which requires an interpretation of the law, because it would be obscure, or its difficult comprehension, must be returned to the legislative Body. It is the procedure of the “summary procedure-legislature”: the Court of cassation must of refer with the deputies. But it is about a survival of a procedure instituted by Louis XIV, which defended with the courses to interpret the royal standards. Moreover, the Court of cassation must return account to the legislative Body: each year, 8 judges of the Court must explain to the deputies the bases of their decisions. The deputies can thus check that the magistrates do not exceed their capacities. Lastly, the Court of cassation is primarily seen like a judge of the procedure, whose task appears limited: it is the hard core of its competence, with which one associates the “infringment express with the law”. The Court can then break the decision, i.e. to cancel the decision and to return the examination of the bottom of the business in front of a new jurisdiction. However, if, 2 times of continuation, the Court must know of the same business, it is the legislative Body itself which slices the litigation in last spring.

August 31st, 2006, the deputy Jean-Luc Warsmann deposited a Private bill of simplification carrying abrogation of the law of December 1st, 1790, while considering:

that this text not corresponding more to the present needs for the citizens, his maintenance is likely to induce them in error or to make more complex the comprehension of the law
than the Court of appeal supposes to be distinguished well from its predecessor, which would be more one instrument with the service of the legislator, who a true jurisdiction with the current direction of the term

Organization

First president

The Court of appeal is chaired by a first president. It has an administrative role, disciplinary, but such a jurisdictional role. It is the first legal magistrate of France.

The first president of the Court of appeal is named by the President of the French Republic, on proposal in conformity of the Superior council of the magistrature.

The first president of the Court of appeal is currently Vincent Lamanda. He succeeded Guy Canivet.

Administrative role

Jurisdictional role

The First President chairs two kind of audience. He chairs the mixed Room which joins together three rooms of the Court of appeal at least. He chairs also the Plenary assembly which is the type of the most solemn audience because she brings together all the presidents of room, the seniors and the public prosecutor.

Disciplinary role

General prosecutor

Public prosecutor: Mr. Jean-Louis Nadal

Formations of judgment

Rooms

With its origin, the Court of appeal comprised only three rooms: a civil court, a court of criminal appeal, and a room of the requests. The latter ruled on the founded good of a request, before the business is not heard by the civil court. The court of criminal appeal, it, did not pass by this filter, just as the social room, when it was creates in 1938.

Today, the French Court of appeal is made up of six rooms (5 civil courts and 1 court of criminal appeal), between which the businesses are distributed, according to the matter concerned).

First Civil court ( Civ. 1 );
Second Civil court ( Civ. 2nd , instituted by the law of July 22nd, 1947);
Third Civil court ( Civ. 3rd , instituted by the law of July 22nd, 1947);
Court of criminal appeal ( Crim .) ;
social Room ( Plowshare , instituted by the Order in Council of November 12th, 1938);
commercial Room ( Com. , instituted by the law of July 3rd, 1967).

It is necessary to distinguish these rooms from full exercise of the joined together rooms, the mixed rooms and the plenary assembly, which are formations of the Court of appeal including/understanding of the magistrates of several rooms, sitting in particular to standardize jurisprudences of the rooms.

Mixed rooms

The judgments of the Court of appeal are handed down in theory by one of the Rooms.

Nevertheless the reference in front of a mixed Chambre can be ordered when a business raises a question normally raising of attributions of several Rooms or if the question received or is likely to receive in front of the Rooms of the divergent solutions; it owes the being in the event of equal division of the voices.

Plenary assembly

The reference in front of the Plenary assembly can as for him be ordered when the business raises a question of principle, in particular if it exists divergent solutions either between the courts dealing with the substance of a case, or between the courts dealing with the substance of a case and the Court of appeal; it owes the being when, after cassation of a first stop or judgment, the decision returned by the jurisdiction of reference is attacked by the same means of cassation.

Procedure

The Court of appeal has to rule on the founded good of an appeal formed against a judgment delivered by a Court of Appeal or from a judgment in first and the last comes out (i.e. nonlikely of call) returned by a court.

The role of the Court of appeal thus results from the nature of this ground for appeal.

In this respect, according to articles 604 of the new Code civil procedure and 567 of the Criminal procedure code, " the appeal tends to make censure by the Court of appeal the nonconformity of the judgment which it tackles with the legal provisions ".

These provisions are lit by the article L 111-2, subparagraph 2, of the Code of the legal organization which, relative with the mission of the Court of appeal, specifies that " the Court of appeal does not know bottom of the businesses, except legislative measures contraires" .

For this reason one teaches that the Court of appeal does not constitute a third degree of jurisdiction.

Robespierre said already Court of cassation that it was not " not the judge of the citizens, but the guard of the laws ".

In this role of " guard of the lois" , the Court of appeal is a Court known as " régulatrice" : the unicity of its control (there can be only one Court of appeal) ensures the uniformity of the application of the law in France and " régule" thus its application on the territory of the Republic.

The Court of appeal is thus not trier of fact: the report of the facts is reserved to the courts dealing with the substance of a case (courts and course of call) within the framework of the exercise of a capacity known as " souverain" , i.e. which escapes control from the Court of appeal.

Means of cassation

The Court is seized by an appeal formed by a lawyer with the Council of State and the Court of appeal (commonly called " lawyer in Conseils") on behalf of the justiciable one. If the appeal is not signed by a lawyer of this particular Kind, it is inadmissible, except if it is about a matter for which the representation by a lawyer with the Councils is not obligatory (thus it is criminal matter for the benefit of the penally condemned part).

Drafting of the appeal

Texts

According to the article of the new code of civil procedure:

“ to hardly be declared of inadmissible office a means or an element of means should implement one case of opening. Each means or each element of means must specify, under the same sanction:

the case of opening called upon;
the criticized part of the decision;
it in what this one incurs the pled reproach. ”

According to the article of the criminal procedure code:

“ the memories contain the means of cassation and aim at the legal texts whose violation is called upon. ”

With the civilian

The appeal formulates criticisms in right against the attacked decision. These criticisms are called “average cassation”. They themselves are made out in one or more “branches” corresponding each one to a case of opening to cassation.

The means of cassation obey thus the diagram of the legal syllogism (major, minor, conclusion), in a specific form:

Means of cassation
It is made objection to the stop attacked (or the judgment attacked according to the case) to have decided that criticized.
With the reasons that criticized;
Whereas means of cassation connects, legal provision, of it in what the court dealing with the substance of a case did not comply with this rule, of the nature of the made error (case of opening to cassation)

The statement of the legal provision constitutes major syllogism, the statement of it in what the court dealing with the substance of a case did not comply with this rule constitutes its minor and the statement of the case of opening to cassation constitutes its conclusion.

With the penal one

In the penal field, it is of use to present the means of cassation in a different form:

Means of cassation
Violation of the violated articles, 593 of the Criminal procedure code, defect of reasons, basic defect legal;
In what the attacked stop criticized.
With the reasons that criticized;
Whereas means of cassation connects, legal provision, of it in what the court dealing with the substance of a case did not comply with this rule, of the nature of the made error (case of opening to cassation)

Cases of opening to cassation

The cases of opening to cassation are the types of errors of right which the court dealing with the substance of a case can make and which expose its decision to the censure of the Court of appeal.

The Court of appeal controls the correct application of the basic law (i.e. that whose the exit depends on the litigation) but also of the law of procedure (such as, for example, rules which controls the composition of the jurisdictions or the course of the lawsuit (of which, in particular, the rule stated by the article of new the Code of civil procedure French, text according to which the judge must respect and respect itself the principle of contradictory)).

The comprehension of the nature of each case of opening to cassation is thus essential to include/understand the range of the stops of the Court of appeal and to make it possible to learn the lessons from them.

Thus, a cassation for violation of article 455 of the new Code of civil procedure (cassation known as " disciplinaire") obviously the same range does not have as a cassation for violation of a text of substantial right.

The cases of opening to cassation are the following: the defect of reasons, the contradiction of reasons, the defect of answer to conclusions, the basic defect legal, the violation of the law (by false application, refusal of application or false interpretation), the denaturation of a clear and precise writing.

There exist moreover cases specific and relatively rare of opening to cassation which are the contrariety of judgments or loss of legal basis.

The contrariety of judgments meets when two decisions cannot be carried out simultaneously. In this case, the appeal must be directed against the 2 decisions.

The loss of legal basis meets when the intervention of a new law of immediate application to the businesses in progress returns the solution of an erroneous jurisdiction of the bottom.

The defect of reasons

The article of the new Code of civil procedure obliges the judge to justify his decisions. Failing this its decision is broken with the visa of this text.

The contradiction of reasons

It is actually about a more subtle case of defect of reasons: the contradiction of reasons is equivalent to a defect of reasons according to the Court of appeal, this is why the censure is also marked with the visa of article 455 of the new Code of civil procedure.

Only the contradiction of reasons for fact is censured. e.g.: A judge cannot at the same time note that an individual struck a second individual and in the same decision, to note that there no was brawl.

The contradiction of reasons for right is not censured since one of the reasons for law does not reveal a violation of the law.

Indeed, the second, erroneous, is then superabundant.

If the contradictory reasons for right are all erroneous, then the censure will be marked on the base of as many violations of the law.

The defect of answer to conclusions

It is again about a more subtle case of defect of reasons this is why the censure is still marked there with the visa of article 455 of the new Code of civil procedure.

The judge, to justify his decision correctly, must answer the means of the parts which constitute the framework of the debates.

However, the judge does not have to answer an inoperative means or obviously badly founded.

In the same way, it is not held to enter in detail of the submission of the parties.

The basic defect legal

It is about one of the cases most difficult to apprehend and which makes it possible to formulate criticisms most subtle.

This case is proven when the observations in fact of the court dealing with the substance of a case are insufficient to apply the legal provision which it applied.

Thus, the judge cannot make application of article 1382 of the Civil code if it does not note a damage.

The violation of the law

The violation of the law by false application

The judge applies a text to a de facto situation which was not governed by this text.

The violation of the law by refusal of application

The judge does not apply a text to a de facto situation which was governed by this text.

The violation of the law by false interpretation

The judge interprets in an erroneous way a legal text.

The denaturation of a clear and precise writing

Before the Court of appeal, the justiciable one cannot dispute the interpretation which the court dealing with the substance of a case of a writing (e.g. a contract) gives.

If the writing is ambiguous and that its analysis thus supposed an interpretation, the decision of the court dealing with the substance of a case cannot be criticized on this subject.

But interpretation has its limits: if the writing is clear and precise, the judge cannot modify of them the direction under cover of interpretation; failing this, it denatures the writing.

The denaturation can be made by addition or omission: in the first case, the judge adds to the writing what it does not contain and, in the second, it omits to raise what contains writes it.

It will be noted that in this case the cassation is marked with the visa of article 1134 of the Civil code.

Indeed, the judge, by denaturing the writing (generally a contract) ignored this text according to which conventions make the law of the parts (" Pacta sunt servanda").

From a purely theoretical point of view, it is thus about a case of violation of the law.

The exit of the appeal

When the appeal is rejected, the attacked decision becomes irrevocable. When the appeal is accommodated, the Court breaks the attacked decision: the cassation can be total or partial according to the range of the means of cassation accommodated.

The cassation is without reference when the Court estimates that it is capable capacity to apply the legal provision appropriate to the facts as noted by the courts dealing with the substance of a case.

Failing this, the Court returns the business and the parts before another Court of Appeal or the same Court of Appeal but otherwise composed and this, " to be made droit".

In conclusion, the justiciable one must take care not to mistake when it obtains win before the Court of appeal: the Court therefore did not take its party (its role such as definite above prohibits to him) and as well, in fine, the correct application of the law by the judge of reference could be to him unfavourable.

Classification of the stops

The stops of the Court of appeal are distributed according to their range and of the importance of the decision.

They can thus remain new and remained known by their only number of appeal (in form AA-XX.YYY e.g. 05-01.467) or be the subject of a publication to the Bulletin of the stops of the Court of appeal (it then acts of stops known as " of principe").

The adoptions of the Court of criminal appeal are published in a distinct volume heading “Bulletin criminal”.

The most important adoptions moreover are published in the News bulletin, even in the annual report of the Court of appeal.

The stops thus receive a dimension according to their contribution with the substantive law:

P means " Publication". This mention means that the adoption will be published in the Bulletin of the stops of the Court of appeal;
B means " publication with the semi-monthly News bulletin of Court of appeal (BICC) " , not to confuse with the Bulletin of the stops as of the Court of appeal;
D means " Diffusion". It is about a simple communication to the subscribers of the bottom of contest of the Court of appeal (re-examined legal, etc…), with the various databases (of which Légifrance);
R means " Rapport". The stop will be announced in the report/ratio of the Court of appeal of the year.
I means " Internet". The adoption will be published (often the very same day its delivery) on Internet site of the Court of appeal (notation I does not mean simple publication on Légifrance).

The most important stops are thus with dimensions: P+B+R+I.

Sasine for opinion

Subject:

Apart from any appeal, when a request raises a new point of law, presenting a serious difficulty and being posed in many litigations, the jurisdictions of the legal order can, by a nonlikely decision of recourse, to request the opinion of the Court of appeal which decides within three month of its sasine, pursuant to the article L.151-1, 1st subparagraph, of the Code of the legal organization.

Procedure:

The court dealing with the substance of a case must beforehand warn the parts and the public ministry of his intention to seize the Court of appeal, and to assign a time to them to present possible written observations unless they did not already conclude on this point.

The decision requesting the opinion, which must take the form of a judgment must be notified with the parts, with the date of transmission of the file at the Court of appeal, by registered letter with request for notice of receipt.

Moreover, the judge must warn the first president of his Court of Appeal, the public prosecutor, and the public ministry established close to his jurisdiction.

Relationships to the other jurisdictions

Relationships to the European jurisdictions

Court of justice of the European Communities

European court of the human rights

Relationships to the other jurisdictions

The Court of appeal is member of the Association of the High jurisdictions of cassation of the countries having shares of it the use of French (AHJUCAF).

Jurisdictions and commissions placed near the Court of appeal

The National Commission of repair of detentions, the Commission of revision of the penal decisions, the Commission of re-examination of a penal decision consecutive with pronounced of a judgment of the European Court of the human rights and the Board of examiners of the recourse as regards discipline of the judiciary police officers are placed near the Court of appeal.

It is also the case of the Cour of revision, according to the rules of the Criminal procedure code (France).

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