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Journal Officiel de la République
française (
New
Code of Civil Procedure
dernier texte modificateur signalé :
Decret 2003-542 du
NEW CODE OF CIVIL PROCEDURE
BOOK I PROVISIONS COMMON TO ALL COURTS
TITLE I PRELIMINARY PROVISIONS
CHAPTER I GUIDING PRINCIPLES FOR TRIAL
Article 1
Only the parties may institute proceedings, save where
the law shall provide otherwise. They shall have the right to terminate the
same prior to them being disposed of by way of a judgment or by virtue of the
law.
Article 2
Parties shall conduct the proceedings under the duties
incumbent upon them. They shall carry out the procedural steps in accordance
with the manner and within the time-limit as applicable.
Article 3
The judge shall supervise over the proper progress of
the proceedings; he shall exercise such powers in view of imparting the
time-limits and of giving such directions as necessary.
SECTION II THE SUBJECT MATTER OF A DISPUTE
Article 4
The subject matter of a dispute shall be determined by
the respective claims of the parties.
Such claims shall be set out in the originating
application and in the defence. Notwithstanding the above, the subject matter
of a dispute may be amended by incidental claims where they display a
sufficient link so as to connect them with the original claim.
Article 5
A judge must rule upon all the points at issue and
only upon them.
Article 6
In support of their claims, the parties shall be held
to allege the relevant facts giving rise to them.
Article 7
A judge shall not found his decision on the facts not
at issue.
A judge may even take into consideration such facts as
forming part of the oral arguments but on which the parties did not lay
specific emphasis to support their contention.
Article 8
A judge may invite the parties to provide factual
explanations that he shall deem necessary in view of the resolution of the
dispute.
Article 9
It shall be incumbent on each party to prove in
accordance with the law the constituent facts in view of the success of his
claim.
Article 10
A judge may exercise such powers ex proprio motu in
the giving of such directions as shall be legally appropriate.
Article 11
Parties shall be held to assist in the implementation
of directions, save that the judge may draw such conclusions from the
abstention or refusal of a party in relation to the same.
Where a party is withholding an item of evidence, the
judge may, on the application of the other party, order him to produce the
same, where necessary under pain of a civil penalty. He may, on application by
one of the parties, request or order, where necessary under the same penalty,
the production of all exhibits in the possession of third parties where there
are no legitimate impediment to producing them.
Article 12
(Conseil d'Etat No. 1975, 1905, 1948 to 1951 of 12 October 1979,
Rassemblement des nouveaux avocats de France et autres, JCP 1980, II, 19288)
A judge shall determine a dispute in accordance with
the rules of law applicable thereto.
He shall provide or restore the proper legal definitions
in relation to facts and deeds in issue without limiting himself for that
matter to the denominations proffered by the parties.
He may ex proprio motu raise points of law
irrespective of the legal basis relied upon by the parties.
Notwithstanding the above, he may not change such
denomination or legal bases where the parties, by virtue of an express
agreement and in the exercise of such rights which vest upon them an unfettered
enjoyment, have limited his cognisance to such legal definitions and points of
law within which they seek to restrict the argument.
Where a dispute has arisen, the parties may, where it
shall pertain to the same matters and in the same conditions, vest the judge as
an amicable compounder which shall be amenable to an appeal where the parties
have not expressly renounced to the same.
Article 13
A judge may invite the parties to proffer such
submission on points of law which he shall deem necessary for the resolution of
the dispute.
SECTION VI THE ADVERSARY PROCEDURE
Article 14
No party may have a determination entered against him
without having been heard or called.
Article 15
The parties shall be held to make known in due time to
each other the set of facts giving rise to their claim, the items of evidence
they shall produce and points of law they shall rely upon so that each of them
shall be in a position to prepare his case.
Article 16
(Decree No. 76-714 of 29 July 1976, sec. 1,
Official Journal of 30 July 1976)
(Conseil d'Etat 1875, 1905, 1948 to 1951 of 12 October 1979,
Rassemblement des nouveaux avocats de France et autres, JCP 1980, II, 19288)
(Decree No. 81-500 of 12 May 1981, sec.6, Official
Journal of 14 May 1981)
A judge shall, at any event, cause to comply, and
shall himself comply, with the adversary principle.
He may not, in his decision, take into consideration
issues, explanations and exhibits relied upon or produced by the parties save
where the parties had an opportunity to consider them in an adversarial manner.
He shall not found his decision on points of law which
he has raised ex proprio motu without having first invited the parties to
comment thereon.
Article 17
Where the law shall allow or where the circumstances
shall necessitate that a direction be given without informing a party, the
latter shall have an appropriate right of review where he is aggrieved by a
decision pursuant to the same.
Article 18
A party may plead his cause himself subject to
circumstances where representation shall be mandatory.
Article 19
A party shall choose freely his representative either
to represent him or to assist him in accordance with the law or its directives.
Article 20
A judge may hear the parties themselves at any time.
Article 21
It shall be part of the duties of the judge to
conciliate the parties.
Article 22
Oral arguments shall be held in public, save where the
law allows or directs that they be held in chambers.
Article 23
A judge shall not be bound to have recourse to an
interpreter where he shall master the language used by the parties.
Article 24
Parties shall be bound to act at all times with due
respect to the law.
A judge may, according to the seriousness of the
contempt, pronounce, even ex proprio motu, injunctive decrees, ban
publications, declare them defamatory or order the publication and posting of
his judgments.
CHAPTER
II RULES APPLICABLE
TO NON-CONTENTIOUS MATTERS
Article 25
A judge shall rule upon in a non-contentious matter
where in the absence of a dispute he is seised of an application in relation to
which the law requires, by virtue of the nature of the matter or the status of
the petitioner, that it shall be brought under his supervision.
Article 26
A judge may found his decision on all the facts
relative to the case submitted before him, even those which have not been
alleged.
Article 27
A judge shall proceed with,
even ex proprio motu, all necessary investigations.
He shall have the power to hear without any prescribed
formality persons who may provide guidance to him as well as those whose
interests may be aggrieved by his decision.
Article 28
A judge may rule upon a matter without it being
subsequent to oral arguments.
Article 29
A third party may be granted leave by the judge to
consult the file of a case and to have copies thereof delivered to him where he
shall show cause of a legitimate interest in the same.
Article 30
An action is the right, in relation to the originator
of a claim, to be heard on the merits of the same in order that the judge shall
pronounce it well or ill-founded.
In relation to the opponent, an action is the right to
contest the merits of a claim.
Article 31
An action shall lie to all persons having a legitimate
interest in the success or the dismissal of a claim save where the law shall
confer locus standi only to those persons allowed to bring or contest a claim
or to defend a specific interest.
Article 32
A claim made by or against a person who is divested of
the right to bring an action shall be inadmissible.
Article 32-1
(Inserted by Decree No 78-62 of 20 January 1978,
sec.14, Official Journal of 24 January 1978)
A litigant acting in a dilatory or vexatious manner
may be penalised by way of a civil penalty of F 100 to F 10 000, without
prejudice to damages and interests thereon which may be claimed.
TITLE III JURISDICTION
CHAPTER
I SPECIFIC JURISDICTION
Article 33
The jurisdiction of a court that it shall entertain in
relation to a subject-matter shall be determined by the rules relating to
judicial organisation and by way of specific provisions.
Article 34
Jurisdiction to be entertained in relation to an
amount of a claim or in relation to a jurisdictional value-limit under which no
appeal shall lie shall be determined by rules specific to each court and by the
provisions as hereinafter.
Article 35
Where several claims relying on different facts and
which are not connected with one another are made by a claimant against the
same opponent and joined in the same proceedings, the relevant jurisdiction and
the jurisdictional value-limit shall be determined by the nature and the value
of each claim considered separately.
Where the claims which are
consolidated draw on the same facts or are connected therewith, the relevant
jurisdiction and jurisdictional value-limit shall be determined by the
aggregate value of the claims.
Article 36
Where claims are brought in one single proceedings pursuant to a common action on behalf of several
claimants or against several defendants, the jurisdiction and the
jurisdictional value-limit shall be determined in relation to all the claims by
virtue of that one claim which shall carry the highest claim-value.
Article 37
Where the jurisdiction of a court shall depend on the
amount of a claim, the court shall entertain all interventions and
counterclaims and set-offs which are lower to its jurisdictional value-limit
even where, joined to the claims of the claimant, they shall exceed the said
value-limit.
Article 38
Where the incidental claim shall exceed the
jurisdictional value-limit a court, a judge of the same, where a party shall
allege a lack of jurisdiction, may either rule upon the original claim or may
remit the parties to litigate in relation to the totality of the matter before
the competent court which may have cognisance of the incidental claim.
Notwithstanding the above, where a counterclaim for damages and interest is
based exclusively on the original claim, the judge shall be competent to
entertain the matter irrespective of the value of the claim.
Article 39
Subject to the provisions of Article 35, no appeal
shall lie against the judgment where none of the incidental claims shall exceed
the jurisdictional value-limit of the last resort.
Where one of them shall exceed such limit, the judge
shall rule as a tribunal of first resort in relation to all the claims. He
shall rule upon as of last resort where the claim which shall exceed the jurisdictional
value-limit is further to a counterclaim for damages and interests based
exclusively on the original claim.
Article 40
An appeal shall lie against the judgment which has
ruled upon an unspecified claim save where there are contrary provisions to the
same.
Article 41
Once a dispute has arisen, the parties may
nevertheless agree to submit their dispute before a court which otherwise would
have lacked jurisdiction with reference to amount the of
the claim.
Further, they may, under the same condition and for
matters which vest upon them an unfettered right, agree by virtue of an express
agreement that their dispute shall be justiciable without a right of appeal
even where the amount of the claim shall exceed the jurisdictional value-limit of
the last resort.
CHAPTER
II TERRITORIAL JURISDICTION
Article 42
(Decree No.81-500 of 12 May 1981, sec.7, Official
Journal of 14 May 1981, amendment JORF of 21 May 1981)
The court territorially competent shall be, save where
contrary provisions shall apply, the one for the situs where the defendant has
established his dwelling.
Where there are several defendants, the claimant shall
seise, at his choice, the court of the situs where one of them has established
his dwelling.
Where the defendant has no known domicile or known
residence, the claimant may seise the court of the situs where he has
established his dwelling or anyone of his choice where he has established his
dwelling in a foreign country.
Article 43
Where the defendant has established his dwelling shall
mean:
- in relation to a natural
person, the situs where he has his domicile or, in default thereof, his
residence,
- in relation to a corporate
entity, the situs where it is established.
Article 44
In real actions relating to immovables, the court in
whose province it is situated shall be the only competent court.
Article 45
Matters involving succession shall be brought before
the court in whose province the succession originated and was effectuated to
the time of the apportionment where they relate to:
- claims among heirs;
- claims brought by creditors
of the decedent;
- claims regarding the
implementation of disposition taking effect causa mortis.
Article 46
(Decree No.81-500 of 12 May 1981, sec.7, Official
Journal of 14 May 1981, amendment JORF of 21 May 1981)
The claimant may seise at his choice, in addition to
the court in whose province the defendant has established his dwelling;
- in contractual matters, the
court in whose province actual delivery of the personalty or in whose province
the performance of the agreed service has been contemplated;
- in delictual matters, the
court in whose province the wrongful act was occasioned or the one in whose
province the damage was suffered;
- in mixed matters, the court
in whose province the immovable is situated;
- in matters of spousal
maintenance or contribution to the expenses of marriage, the court in whose
province the creditor has established his dwelling.
Article 47
Where a judge or an auxiliary of justice is a party to
a litigation within the jurisdiction of the court in
the province of which the latter sits in office, the claimant may seise a court
sitting in an adjacent province.
The defendant and all parties to an appeal may
likewise ask to remit the matter before a court referred to under the same
conditions; matter shall be proceeded with as provided under Article 97.
Article 48
Any clause which, directly or indirectly, shall depart
from the rules of territorial jurisdiction shall be deemed non existent save where
it has been agreed between parties to a contract entered into in the capacity
of tradesmen and that the same has been provided for in an explicit manner in
the undertakings of the party against whom it shall be enforced.
Article 49
A court seised of a claim in relation to which it
shall entertain jurisdiction, shall have cognisance of all the grounds adduced
in defence, even where they shall require an interpretation of a contract, save
where they shall raise issues which shall come under the exclusive jurisdiction
of an another court.
Article 50
Preliminary issues of proceedings shall be ruled upon
by the court before which the proceedings to which they relate shall be carried
out.
Article 51
The tribunal de grande instance shall entertain
jurisdiction in relation to all incidental claims which shall not come under
the exclusive jurisdiction of an another court.
Other courts shall entertain jurisdiction in relation
to preliminary issues only where they are jurisdictive over the same.
Article 52
(Decree No. 78-62 of 20 January 1978, sec.15
Official Journal of 24 January 1978)
(Decree No.81-500 of 12 May 1981, sec.9, Official
Journal of 14 May 1981)
Claims in relation to costs, emoluments and
disbursements which are incidental to a proceeding, and which have been
outlayed before a court by the auxiliaries of justice, public officers or officiers
ministériels shall be brought before such court.
Claims regarding costs, emoluments and disbursements
which have not been outlayed before a court shall be brought before the Tribunal
d'instance or the Tribunal de grande instance, according to the
amount of the same, in the province where the public officer or the officier
ministériel or the auxiliary of justice carries out his business.
TITLE IV CLAIM BEFORE A COURT
CHAPTER I INITIAL CLAIM
SECTION I CLAIM IN CONTENTIOUS MATTERS
Article 53
The originating application is the one whereby a
litigant shall take the initiative of judicial proceedings by submitting his
contentions before a judge.
It shall initiate the proceedings.
Article 54
Subject to cases where proceedings are instituted by
way of a petition or by way of a declaration to the clerk’s office of the court
and those where cognisance shall be taken by a voluntary presentation of the
parties before a judge, the originating application shall be brought by way of
summons or by the filing of a joint petition at the clerk’s office of the
court.
Article 55
Summons is a process of a huissier of justice whereby
a claimant shall cite his opponent to appear before a judge.
Article 56
(Decree No. 98-1231 of 28 December 1998, sec.3,
Official Journal of 30 December 1998, in force on 1 March 1999)
The summons shall contain, under penalty of it
otherwise being null, further to the particulars prescribed for process served
by a huissier of justice:
1° The indication of the
court before which the claim is brought;
2° The subject-matter of the
claim with a presentation of the issues of facts and of law;
3° The indication that, where
the defendant fails to appear, he shall incur the risk that a judgment be
entered against him on the sole items produced by his opponent;
4° Should the occasion arise,
particulars in relation to the identification of immovables as required by the
land registry in relation to their advertisement.
Further, it shall contain indications in relation to
the exhibits in support of the claim. Such exhibits shall be listed in a docket
which shall be attached.
It shall amount to the necessary pleadings.
Article 57
The joint petition shall be the process in common
whereby the parties shall submit before a judge their respective claims, the
points on which they disagree as well as their respective grounds.
It shall contain, further, under penalty of it
otherwise being inadmissible:
1° a) in relation to natural persons, the surname,
first names, occupation, domicile, nationality, date and place of birth of each
of the petitioners;
b) in relation to corporate
entities, their form, denomination, the address of their registered office and
the body which shall legally represents them;
2° an indication of the court before which the claim
is brought;
3° should the occasion arise, particulars in relation
to the identification of immovables as required by the land registry in
relation to their advertisement.
It shall also contain an indication as to the exhibits
in support of the claim.
It shall be dated and signed by the parties.
It shall amount to the necessary pleadings.
Article 58
Where such right is conferred upon them by virtue of
Article 12, the parties may, where they have not yet resorted to the same since
the commencement of the dispute, vest the judge with the vires of an amicable
compounder by virtue of the joint petition or limit his cognisance to such
legal definitions and points of law within which they seek to restrict the
argument.
Article 59
The defendant shall have to, on pain of being
declared, even ex proprio motu, inadmissible, set out in his defence:
a) in relation to a natural person, his surname, first
names, occupation, domicile, nationality, date and place of birth;
b) in relation to a corporate
entity, its form, denomination, registered seat and the department that shall
represent it legally.
SECTION II CLAIM IN NON-CONTENTIOUS MATTERS
Article 60
In non-contentious matters, the claim shall be brought
by way of petition.
Article 61
The judge shall be seised by the filing of the
petition at the clerk’s office of the court.
Article 62
Further, before a tribunal d'instance, a claim
may be brought and the court seised by way of an oral declaration taken down by
the clerk’s office-registry of the court.
Article 63
Incidental claims are: counterclaim, additional claim
and intervention.
Article 64
Shall constitute a counterclaim a claim whereby the
original defendant shall contend in his favour beyond the mere dismissal of the
contention brought forward by the opponent.
Article 65
Shall constitute an additional claim a claim whereby a
party shall amend his previous claims.
Article 66
Shall constitute an intervention a claim whereby the
effect shall be to join a third party to an action which involved the original
parties.
Where the claim shall emanate from a third person, the
intervention shall be voluntary: the intervention shall be a compelled one
where a party has impleaded a third person.
Article 67
The incidental claim shall have to contain the claims
and grounds of the party bringing it and shall identify the supporting
documents.
Article 68
Incidental claims shall be brought against parties to a proceedings in the same manner as defences are
submitted.
They shall be brought against defaulting parties or
third parties in the manner provided for to institute proceedings. In relation
to appeals, they shall be brought by way of summons.
Article 69
The instrument whereby an incidental claim is brought
shall amount to a pleading; it shall have to be denounced to other parties.
Article 70
Counterclaims or additional claims shall only be
admissible where they are connected by way of a sufficient link with the
original claims.
Notwithstanding the above, a claim for set-off shall
be admissible even in the absence of such a link, but the judge may sever them
where it is likely to delay excessively the judgment on the whole.
TITLE V GROUNDS OF DEFENCE
Article 71
A point which shall cause the dismissal because
unfounded in relation to the merits, after an examination of the law, the
claims of the opponent shall constitute a substantive defence.
Article 72
Substantive defences may be proffered at any stage of
the proceedings.
Article 73
Issues raised against a procedural course of action to
have it declared irregular, extinguished or stayed shall constitute a
procedural plea.
Article 74
Pleas shall have, under penalty of it otherwise being
inadmissible, to be raised simultaneously and prior to any substantive defence
or peremptory declaration of inadmissibility. It shall be likewise even where
the rules relied upon to sustain the plea are of public policy.
A request for service of exhibits shall not constitute
a ground for inadmissibility of the pleas.
The provisions of the first sub-article shall not prevent
the application of Articles 103, 111, 112 and 118.
SECTION I PLEAS AGAINST JURISDICTION
SUB-SECTION I LACK OF JURISDICTION RAISED BY THE PARTIES
Article 75
Where it is alleged that the court seised lacks
jurisdiction, the party who shall proffer the plea shall have, under penalty of
it otherwise being inadmissible, to provide reasons thereof and to indicate, at
all event, court before which the matter should be brought.
Article 76
The judge may, in one single judgment, but by way of
separate dispositions, hold himself competent and rule
upon the merits of the dispute provided that he shall put the parties on
default notice to plead on the merits in relation to the matter.
Article 77
Where he does not rule upon the substance of the dispute,
but where the determination of a point of jurisdiction shall be dependent upon
the substance at issue, the judge shall have to, in the holding of the
judgment, rule upon the substantive issue and upon jurisdiction by separate
dispositions.
Article 78
Where the judge shall hold himself competent and where
he shall rule upon the merits of a case in one judgment, the same may only be
impugned by way of appeal, either on the entirety of the holdings where they
are amenable to an appeal, or on the ground of jurisdiction where the decision
on the merits has been delivered as of first and last resort.
Article 79
Where the [appeal] court shall reverse the judgment by
virtue of the issue of jurisdiction, it shall, nevertheless, rule upon the
merits of the case where the impugned decision is amenable to an appeal on its
entirety and where the [appeal] court is the proper appellate forum in relation
to the lower court which would have been competent in this matter.
Otherwise, in reversing a judgment on the issue of
jurisdiction, the [appeal] court shall refer the matter to that other appellate
forum jurisdictive over that lower court which would have been competent in
this matter as a tribunal of first instance. This decision shall bind the
parties and the court before which the matter is remitted.
SUB-SECTION III APPELLATE PLEA AGAINST JURISDICTION
Article 80
Where the judge rules upon a point of jurisdiction
without determining the merits of the case, his decision may only be impugned by way of an appellate plea against
jurisdiction, even though the judge has resolved the substantive issue
determinative of jurisdiction.
Subject to special rules as to expertise, the decision
may similarly be impugned only by way of an appellate pleas against
jurisdiction where the judge has ruled in relation to the issue of jurisdiction
and has given a direction or issued an interim order.
Article 81
Where the judge holds himself
competent, the proceedings shall be stayed until the expiration of the
time-limit for lodging the appellate plea against jurisdiction and, where the
same is lodged, until that the court of appeal has delivered its decision.
Article 82
(Decree No. 78-62 of 20 January 1978, sec.16,
Official Journal of 24 January 1978)
The appellate plea against jurisdiction shall have,
under penalty of it otherwise being inadmissible, to set out its grounds and
shall be remitted to the clerk’s office of the court ad quo which has
pronounced the decision within fifteen days therefrom.
Where the appellate plea against jurisdiction are to
be lodged subject to court’s costs payable to the clerk’s office, the lodgment
of the same shall be proceeded with only where the appellant has paid into
court by consignation an amount covering the costs.
An acknowledgment shall be issued on its lodgment.
Article 83
(Decree No. 78-62 of 20 January 1978, sec.16,
Official Journal of24 January 1978)
(Decree No. 82-716 of 10 August 1982, sec. 1,
Official Journal of 17 August 1982)
The clerk of the court ad quo which has delivered the
decision shall notify without delay a copy of the appellate plea to the
opponent party by recorded letter with the advice of delivery slip sought and
shall likewise inform his representative where he has retained one.
Simultaneously, he shall transmit to the
registrar-in-chief of the [appeal] court the file of the case subjoined with
the appellate plea and a copy of the judgment.
Article 84