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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
(Decree No. 82-716 of 10 August 1982, sec. 1,
Official Journal of 17 August 1982)
The first president shall set the date of the hearing,
which shall have to take place as soon as possible.
The registrar of the court shall inform the parties by
recorded letter with the advice of delivery slip sought.
Article 85
Parties may, in support of their claims, submit any
written argumentation which they shall consider appropriate. Such papers,
bearing the imprint of the judge, shall be put on record.
Article 86
The appeal court shall refer the matter to the one
which it shall deem competent. Such decision shall be binding on the parties
and on the referral judge.
Article 87
(Decree No. 76-1236 of 28 December 1976, sec.1,
Official Journal of 30 December 1976)
(Decree No. 82-716 of 10 August 1982, sec. 1,
Official Journal of 17 August 1982)
The registrar of the court shall notify the parties of
the judgment immediately by recorded letter with the advice of delivery slip
sought.
Such judgment may not be amenable to an application to
be set aside. The time-limit for a petition in cassation shall run as from the
notification of the same.
Article 88
(Decree No. 78-62 of 20 January 1978, sec.18,
Official Journal of24 January 1978)
Costs incidental to the appellate plea against
jurisdiction shall be borne by the loosing party on the issue of jurisdiction.
Where the latter is the originator of the appellate plea against jurisdiction,
he may further be ordered to pay a civil penalty of F 100 to F 10,000 without
prejudice to any claim for damages and interest which may be brought against
him.
Article 89
Where the [appeal] court is the appellate forum in
relation to the lower court which the former shall deem jurisdictive of the
matter, the said appeal court may proceed to consider the merits of the case
where it shall hold the view that justice commands that a definite solution be
brought to the matter at issue, after having issued, should the occasion arise,
any necessary directions.
Article 90
Where it shall decide to hear the substance of the
matter, the court shall invite the parties, should the occasion arise, by
recorded letter with the advice of delivery slip sought, to retain an avoué
within the time-limit that it fixes, where such retainership is required by the
rules applicable to appeals against decisions pronounced by the lower court
which gave the impugned judgment over the issue of jurisdiction.
Where none of the parties has retained an avoué,
the court may ex proprio motu strike out the matter by a reasoned decision
which shall not be subject to appeal. A copy of such decision shall be brought
to the notice of each of the parties by ordinary letter addressed to their
domicile or residence.
Article 91
(Decree No. 82-716 of 10 August 1982, sec. 1,
Official Journal of 17 August 1982)
Where the court considers that the decision which is
brought before it by way of an appellate plea against jurisdiction should have
been brought by way of an appeal, it shall nevertheless be seised of the
matter.
The matter shall then be examined and judged according
to the rules applicable to appeals against a decision pronounced by the lower
court which has been impugned pursuant to the appellate plea.
Where, according to these rules, the parties have to
retain an avoué, the appeal shall ex proprio motu be declared
inadmissible where the party who proffered the appellate plea against
jurisdiction has not retained any avoué within a month of the advice
given to the parties by the registrar of the court.
SUB-SECTION IV LACK OF JURISDICTION RAISED EX PROPRIO MOTU
Article 92
(Decree No. 76-1236 of 28 December 1976, sec.2-i
and II, Official Journal of 30 December 1976)
Lack of jurisdiction may be declared ex proprio motu
in cases of contempt of a rule which confers specific jurisdiction to a
designated forum where such rule pertains to public policy or where a defendant
does not appear. The same may only be declared in the aforementioned cases
alone.
Before a court of appeal and the Cour de cassation,
lack of jurisdiction may be raised ex proprio motu only where the matter shall appertain
to a criminal or administrative court or shall lie outside the cognisance of a
French court.
Article 93
(Decree No. 76-1236 of 28 December 1976, sec.3,
Official Journal of 30 December 1976)
In non-contentious matters, the judge may raise ex
proprio motu his lack of territorial jurisdiction. He may only do so, in
contentious matters, in litigations relating to the status of persons in cases
where the law ha conferred exclusive jurisdiction to another court or where a
defendant does not appear.
Article 94
An appellate plea against jurisdiction shall be the
only means available where a court ruling upon a matter as a court of first
instance shall declare itself ex proprio motu as lacking jurisdiction.
SUB-SECTION
V COMMON PROVISIONS
Article 95
Where the judge, in considering his jurisdiction,
resolves the substantive issue determinative of the same, his ensuing decision
shall have the authority of res judicata in relation this substantive
consideration.
Article 96
Where a judge considers that the matter appertains to
a criminal, administrative, arbitral or foreign court, he shall only remit the
parties thereto to perfect their petition.
At all events, a judge who holds himself as lacking
jurisdiction shall designate the forum which he holds competent. This
designation shall be binding on the parties and the ad quem referral judge.
Article 97
(Decree No. 76-1236 of 28 December 1976, sec.4,
Official Journal of 30 December 1976)
(Decree No. 81-500 of 12 May 1981, sec.10, Official
Journal of 14 May 1981)
Where there is a remission before a designated forum,
the file of the matter shall be transmitted to the latter as soon as possible
by the clerk of the court with a copy of the decision to remit. Notwithstanding
the above, the transmission shall only be carried out in the absence of an
appellate plea against jurisdiction within the time-limit where such mean was
available against the decision of to remit.
On receipt of the file, the parties shall be invited
by recorded letter with the advice of delivery slip sought by the clerk of the
designated forum to prosecute the proceedings and, where the same appears
necessary, to retain an avocat or avoué.
Where, before such a forum, the parties are required
to be represented, the matter shall be deleted off the list ex proprio motu
where none of the parties has retained an avocat or avoué, as
appropriate, within a month of the advice given to them.
Where the remission is before the court which was
originally seised of the matter, the proceedings shall be prosecuted at the
suit of the judge.
Article 98
A lodgment of an appeal shall be the only mean
available against summary interlocutory procedure orders and against a decree
of the conciliating judge in matters of divorce or judicial separation.
Article 99
As an exception to the rules of the present Section,
the court may only be seised by way of an appeal where the lack of jurisdiction
has been relied upon or raised ex proprio motu on the ground that the matter
appertains to an administrative court.
SECTION II PLEAS OF LIS ALIBI PENDENS AND AGAINST DOUBLE COGNISANCE
Article 100
Where a same cause of action is pending before two
forums of the same hierarchy equally competent, the court seised last shall
relinquish jurisdiction in aid of the first seised one where one of the parties
so requests. In default thereof, this may be proceeded with ex proprio motu.
Article 101
Where matters currently apprised
by different forums shall exhibit links between them so that it is in the interest
of justice to manage and to determine them together, one of forum seised may be
asked to relinquish jurisdiction and to remit the matter as it shall stand
before the other.
Article 102
Where the forums seised are not of the same hierarchy,
pleas of litispendens or those against double cognisance may only be raised
before the inferior one.
Article 103
A plea against double cognisance may be brought at any
time during the proceedings, save that it may be dismissed where raised at a
late stage in a dilatory intention.
Article 104
Reviews against decisions pronounced in relation to
lis alibi pendens or double cognisance by forums of first instance shall be
brought and determined in the same manner as in relation to a plea against
jurisdiction.
Where there is a multiplicity of reviews, it shall be
for the court of appeal seised first to decide, where it upholds the plea, to
remit the matter to an another court which in the
circumstances shall appear most convenient to have cognisance of the matter.
Article 105
The decision given on the pleas of exceptions as
above, either where pronounced by the court seised or where it is pursuant to
an appeal, shall be binding on both the court of remission and on the court
which was ordered to relinquish jurisdiction.
Article 106
Where both courts have relinquished jurisdiction, the
decision pronounced last shall be deemed void.
Article 107
Where on a question of double cognisance, difficulties
arise between different panels of the same court, they
shall be resolved without any formality by the president. His decision shall be
an act of judicial administration.
Article 108
The judge shall have to stay the proceedings where the
party requesting the same has in his favour a certain period in order to carry
out an inventory and effect a deliberation or has a vested right of a benefit
of discussion or a benefit of divided liability, or has in his favour such
other periods as afforded by law.
Article 109
The judge may grant for the benefit of a defendant a
postponement in view of issuing proceedings against a surety.
The proceedings shall resume their course upon the
expiration of the time-limit granted for the surety to appear; save that the
indemnity claim shall be ruled upon separately where the impleading of the
surety was not carried out within the time-limit fixed by the judge.
Article 110
Further, the judge may stay proceedings where one of
the parties shall rely upon a decision which is the subject-matter of an
application to set aside, or of a review to reconsider or of a petition in
cassation.
Article 111
The party who has the benefit of a time-limit to draw
up an inventory and to effect a deliberation may proffer such other pleas of
exceptions after the expiration of such time-limit.
SECTION IV PLEAS OF NULLITY
SUB-SECTION I NULLITY OF INSTRUMENTS OWING TO FORMAL IMPROPRIETY
Article 112
The nullity of processual papers may be raised as and
when they are served; but their impropriety shall be waived where the person
seeking to rely upon the same, has proffered, subsequent to the impugned
instrument, a substantive defence or a plea seeking a peremptory declaration of
inadmissibility .
Article 113
Grounds contending to the effect
that processual papers shall be null, shall have to be raised simultaneously on
pain of inadmissibility of such other grounds which shall not have been raised
on that occasion.
Article 114
No processual paper may be declared null for a formal
impropriety where the nullity was not expressly provided for in law, save where
there is a failure to observe an essential formality or where it shall pertain
to public policy.
Nullity may not be pronounced save where the opponent
who relies upon it proves the prejudice the impropriety has caused to him even
in the case of an essential formality or where it pertains to public policy.
Article 115
The impropriety is made right on it being subsequently
remedied, where no time-limitation has intervened and where no prejudice shall
subsist.
Article 116
The sanction for failure to observe procedural
formality prior to the oral arguments shall be subject to the rules provided in
this sub-section.
SUB-SECTION
II NULLITY OF
INSTRUMENTS OWING TO SUBSTANTIVE IMPROPRIETY
Article 117
Shall constitute substantive impropriety affecting the
validity of an instrument:
Lack of capacity to ester in judgment;
Lack of authority of a party or a person appearing in
the proceedings as the representative of either a corporate entity or of a person
under legal incapacity;
Lack of capacity or authority of a
person legally representing a party before a court of law.
Article 118
Pleas of nullity based on the failure to observe the
substantive rules relating to processual papers may be raised at any stage of
the proceedings, but the judge may award damages and interest against a party
who, in a dilatory intention, failed to raised the same earlier.
Article 119
Pleas of nullity based on the failure to observe
substantive rules relating to processual papers shall be admissible without the
party raising them having to prove a prejudice caused to him even where the
nullity does not result from express provisions.
Article 120
Pleas of nullity based on the failure to observe
substantive rules relating to processual papers shall have to be raised ex
proprio motu where they pertain to matters of public policy.
The judge may raise ex proprio motu the nullity in
view of the lack of capacity to ester in judgment.
Article 121
In cases where it is susceptible of being remedied,
nullity shall not be entered where the defect has been remedied at the moment
the judge shall rule upon the same.
CHAPTER III PEREMPTORY DECLARATION OF INADMISSIBILITY
Article 122
Shall constitute a plea seeking a peremptory
declaration of inadmissibility one which, without an examination on the merits
of the case, shall cause to render the opponent’s claim inadmissible on the
grounds that it does not disclose a right of action, a locus standi or an
interest, or it is precluded by virtue of prescription, a determined time-limit
or by the operation of res judicata.
Article 123
A plea seeking a peremptory declaration of
inadmissibility may be brought at any stage of the proceedings save that the
judge may order damages and interest against those who, in a dilatory
intention, failed to raise them earlier.
Article 124
A plea seeking a peremptory declaration of
inadmissibility shall be admissible without the party raising it shall have to
prove a prejudice caused to him even where the inadmissibility shall no result
from express provisions.
Article 125
(Decree No. 79-941 of 7 November 1979, sec.5,
Official Journal of 9 November 1979 in force on 1 January 1980)
A peremptory declaration of inadmissibility shall have
to be raised ex proprio motu where it pertains to matters of public policy, and
namely where they result from an inobservance of a time-limit within which
means of review are to be instituted or where no means of review shall lie.
The judge may raise ex proprio motu the question of a
peremptory declaration of inadmissibility where the action lacks interests to
suing out.
Article 126
In the case where the situation giving rise to a
peremptory declaration of inadmissibility may be remedied, the inadmissibility
shall be set aside where its cause shall no longer exist at the moment the
judge shall rule upon it.
The same shall apply where, before the operation of a preclusion to suing out, a person having standing to act
shall be joined as a party to the proceedings.
Article 127
Parties may mediate as between themselves a settlement
or the same may be engineered by the judge at any time during the proceedings.
Article 128
A attempt at
conciliation may be undertaken, save where special provisions shall apply, at
such venue and time as the judge shall deem proper.
Article 129
Parties may always request the judge to record their
settlement.
Article 130
The tenor of the agreement, even where partial, shall
be recorded in a procès-verbal signed by the judge and by the parties.
Article 131
Abstracts of the procès-verbal recording the agreement
may be delivered; they shall be enforceable.
Article 131-1
(Inserted by Decree No. 96-652 of 22 July 1996, sec.2,
Official Journal of 23 July 1996)
A judge seised of a dispute may, after having received
the agreement of the parties, appoint a third person to hear the parties and to
confront their points of view so as to allow them to resolve the issues
dividing them.
The same power may be exercised by the summary
interlocutory procedure judge in the course of a proceeding.
Article 131-2
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
Mediation shall relate to the whole or a part of the
dispute.
At any event it shall not bring the matter out of the
cognisance of the judge who may at any time give all other directions which
shall appear necessary to him.
Article 131-3
(Inserted by Decree No. 96-652 of 22 July 1996, sec.2,
Official Journal of 23 July 1996)
The initial time-limit for mediation shall not exceed
three months. The assignment may be renewed once, for the similar duration, at
the suit of the mediator.
Article 131-4
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
Mediation may be assigned to a natural person or to an
association.
Where the appointed mediator is an association, its
legal representative shall submit to the approbation of the judge the surname
or surnames of the natural person or persons who shall implement the measure on
its behalf.
Article 131-5
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
A natural person implementing mediation shall have to
satisfy the following conditions:
1° Not having been the subject of a criminal sentence,
of an incapacity or a forfeiture as indicated in the N° 2 criminal record
bulletin.
2° Not having been the originator of facts contrary to
honour, probity and good virtue which gave rise to disciplinary or
administrative sanctions of dismissal, removing off, revocation, or that of a
withdrawal of consent or authorisation;
3° To hold, by actual and
past occupation, the required qualifications with regard to the nature of the
dispute;
4° To show cause of, as the
case may be, a training or experience suitable for the practice of mediation;
5° To demonstrate sufficient
guarantee of independence necessary to conduct mediation.
Article 131-6
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
The decision which orders a
mediation shall indicate the agreement of the parties, appoint the
mediator and the initial duration of his enterprise and indicate the date at
which the matter shall be called for a hearing.
It shall fix the amount of the deposit for the
remuneration of the mediator at a level which is the nearest possible to the
foreseeable payment and shall designate the party or parties who shall deposit
by consignation within the imparted time-limit; where several parties are
designated, the decision shall indicate the contribution in relation to
consignation of each party.
In default of a deposit by consignation, the decision
shall lapse and the proceedings shall be prosecuted.
Article 131-7
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
As from the pronouncement of the decision appointing
the mediator, the registry of the court shall notify a copy thereof by ordinary
letter to the parties and the mediator.
The mediator shall immediately make known to the judge
his acceptance in relation to the same.
As soon as he is informed by the registrar of the
consignation, he shall have to convene the parties.
Article 131-8
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
The mediator shall not hold powers to give directions.
Notwithstanding the above, he may, with the agreement of the parties and as
necessitated by the mediation, hear third persons consenting to the same.
The mediator may not be appointed, in the course of
the same proceedings, to implement directions.
Article 131-9
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
The natural person who carries out a
mediation shall inform the judge of difficulties encountered in the
implementation of his assignment.
Article 131-10
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
The judge may put an end, at any time, to the
mediation on application by a party or on the initiative of the mediator to the
same.
The judge may, further, ex proprio motu put an end
thereof where the proper progress of the mediation shall seem to have been
compromised.
At all events, the matter shall have to be called for
a hearing to which the parties shall have to be convened at the suit of the
registrar by recorded letter with the advice of delivery slip sought.
At such hearing, the judge, where he puts an end to
the assignment of the mediator, may revive the proceedings. The mediator shall
be informed of the decision.
Article 131-11
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
At the termination of his enterprise, the mediator
shall inform in writing the judge that the parties have or not resolve the
issues dividing them.
On the day fixed, the matter shall be brought before
the judge.
Article 131-12
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
At the request of the parties the judge shall approve
by way of homologation the agreement that they shall submit before him.
Homologation shall appertain to non-contentious
matters.
Article 131-13
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
At the termination of his enterprise, the judge shall
fix the remuneration of the mediator.
The burden of the cost of the mediation shall be borne
as provided under Article 22 of the Act n° 95-125 of the 8 February 1995
relating to the organisation of courts and that of civil, criminal and
administrative procedures.
The judge shall grant leave to the mediator to have
the amount deposited to the registry to be released to him up to the due limit.
He shall order, where the same appears necessary, the
payment of additional sums and shall indicate the party or parties who shall
have to provide for it, or the return of the excess amount deposited.
An enforceable title shall be delivered to the
mediator on his request.
Article 131-14
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
The findings of the mediator and the declarations he
has taken down may not be produced nor shall be relied upon in the course of
the subsequent proceedings without the agreement of the parties, nor, in any
case, be referred to in any other proceedings.
Article 131-15
(Inserted by Decree No. 96-652 of 22 July 1996,
sec.2, Official Journal of 23 July 1996)
No appeal shall lie against a decision providing for,
renewing the mediation or putting an end to the same.
TITLE VII JUDICIAL ADMINISTRATION OF EVIDENCE
SUB-TITLE I EXHIBITS
CHAPTER I SERVICE OF EXHIBITS BETWEEN PARTIES
Article 132
The party who shall rely on an exhibit shall be bound
to disclose it to the other party to the proceedings.
Service of exhibits shall have to be spontaneous.
In the course of an appeal, a new service of exhibits
already on record in relation to the trial of first instance shall not be
required. Any party may nevertheless require that he same be complied with.
Article 133
Where the service of exhibits has not been carried
out, the judge may, without any formality, be requested to order such service.
Article 134
The judge shall fix the time-limit, on pain of a civil
penalty should the occasion arise, and the manner of the service, where
necessary.
Article 135
The judge may exclude from the trial those exhibits
which have not been served in due time.
Article 136
The party who does not return the exhibits served may
be compelled to do so, ultimately under a civil penalty.
Article 137
The amount of the civil penalty may be determined by
the judge who ordered it.
CHAPTER II OBTAINING EXHIBITS HELD BY A THIRD PERSON
Article 138
Where, during the course of the proceedings, a party
wishes to rely on an authentic instrument of record or an instrument under
private signature to which he was not a party or a document held by a third
party, he may request the judge seised of the matter to order that a certified
copy of the same be delivered or that the instrument or document be produced.
Article 139
The request shall be made without any formality.
The judge, where he shall deem the request to be
well-founded, shall order the delivering or production of the instrument or
document, its original, or a copy or extract as the case may be thereof, under
the conditions and undertakings that he shall determine, should the occasion
arise, under a civil penalty.
Article 140
The decision of the judge shall be enforceable, and
where it appears necessary, by the production of the minutes of the same.
Article 141
In case of difficulty, or where a lawful impediment is
raised, the judge who ordered the delivery or the production may, on the
informal request made to him, revoke or amend his decision. The third party may
appeal against the new decision within fifteen day as from its pronouncement.
CHAPTER III SERVICE OF EXHIBITS HELD BY A PARTY
Article 142
Requests for service of items of evidence held by the
parties shall be made, and the service complied with, in accordance with
Articles 138 and 139.
SUB-TITLE II DIRECTIONS
CHAPTER I GENERAL PROVISIONS
SECTION I DECISIONS PROVIDING FOR DIRECTIONS
Article 143
The factual circumstances upon which the resolution of
the dispute shall rely upon, may, at the request of the parties or ex proprio
motu, be the subject of any directions legally permissible.
Article 144
Directions may be given at any time in the course the
proceedings, ever since the judge is not placed before sufficient material to
determine the matter.
Article 145
Where there is a legitimate reason to preserve or to
establish, before any proceedings, the means of proving the factual
circumstances upon which the resolution of the dispute shall depend, directions
legally permissible may be given at the request of any party further to a
petition or by way of a summary interlocutory procedure.
Article 146
Directions may be given in relation to factual
circumstances only where the party shall bring the same lacks the necessary
means to proving the same.
In no case may directions be given for the sake of
making up a party’s deficiency in the presentation of evidence.
Article 147
The judge shall have to limit his choice of directions
as to what shall be sufficient for the resolution of the dispute by
endeavouring to select the simplest and least onerous ones.
Article 148
The judge may combine several directions. He may at
any time, even while they are being carried out, decide to add any other
necessary order to those which have been given.
Article 149
The judge may at any time extend or restrict the scope
of the prescribed directions.
Article 150
The decision which gives or amends directions may not
be set aside; it may not be impugned independently of the judgment on the
merits of the case by way of an appeal or by way of a petition in cassation,
save where they are specified by law.
The same shall apply to decisions rejecting a request
for a direction or for the variation of those already given.
Article 151
Where it may not be appealed against independently of
the judgment on the merits of the case, the decision may take the form of
simple notes recorded on the file or on the transcript of the hearing.
Article 152
The decision in relation to, in the course of
proceedings, the providing or the varying of directions shall not be notified.
It shall be likewise in relation to decisions rejecting a request for direction
or providing for a variation of those already given. The clerk shall send a
copy of the decision by ordinary letter to the defaulting or absent parties at
the time of the pronouncement of the decision.
Article 153
A decision providing for directions may not bring the
matter out of the cognisance of a judge.
Article 154
Directions shall be carried out at the initiative of
the judge or of one of the parties according to the rules applicable to each
matter on the examination of an extract of a certified copy of a judgment where
the same shall apply.
SECTION II IMPLEMENTING DIRECTIONS
Article 155
(Decree No. 98-1231 of 28 December 1998, sec.4,
Official Journal of 30 December 1998 in force on 1 March 1999)
Directions shall be carried out under the supervision
of the judge who provided for them where he does not proceed with the same
himself.
Where directions have been provided for by a
panel-judge, the supervision shall be exercised by the judge
who were entrusted with the management, in default thereof, by the
president in relation to the panel-judge where the matter has not been
entrusted to any member of the same.
The judge specified in the first sub-article and the
panel-judge may further have recourse to a judge appointed in the manner as
provided for under Article 155-1.
Article 155-1
(Inserted by Decree No. 98-1231 of 28 December
1998, sec.5, Official Journal of 30 December 1998 in force on 1 March 1999)
The president of the court may, in the interest of a
good administration of justice, appoint a judge especially entrusted with the
supervision the implementation of directions as conferred to a technician in
application of Article 232.
Article 156
The judge may go outside the province of the court’s
jurisdiction to implement directions or to supervise the same.
Article 157
Where the remoteness of the parties or person who have
to assist with the directions, or the remoteness of the place, shall render
travelling to and from it too difficult or too onerous, the judge may request
another court of equal or lesser jurisdiction to proceed with all or part of
the directions ordered.
The decision shall be transmitted with all useful
documents by the clerk of the commissioning court to the commissioned court. On
receipt thereof, the prescribed directions shall be proceeded with at the
initiative of the commissioned court or of the judge whom the president of the
latter court has designated to that effect.
The parties or persons who have to assist in the
execution of the directions shall be directly convened or advised by the
commissioned court. Parties shall not be required to retain an avocat or
avoué before such a court.
Where the directions have been implemented, the
clerk’s office of the court which proceeded with the same, shall transmit to
the commissioning court the procès-verbaux subjoined with documents annexed or
objects deposited.
Article 158
Where several directions have been given, their
execution shall be carried out simultaneously wherever possible.
Article 159
Directions given may be executed immediately.
Article 160
Parties and third parties who shall have to assist
with the directions shall be convened, as the case may be, by the clerk of the
judge proceeding with them or by a commissioned expert. The convocation shall
be by recorded letter with the advice of delivery slip sought. The parties may
likewise be convened by the delivery to their representative of
a simple notes.
Parties and third person may also be convened verbally
where they are present at the time of the fixing of the date for the implementation
of the directions.
Representatives of the parties shall be advised by
ordinary letter where they have not been advised verbally or by a memorandum.
Defaulting parties shall be advised by ordinary
letter.
Article 161
The parties may be assisted in the implementation of
directions.
They may release themselves from attending their
implementation where shall not be caused to testify over the same.
Article 162
The person who shall represent or assist a party
before a court which has given directions may attend its implementation
wherever it shall take place, make submissions or present any request relating
to its implementation in his absence.
Article 163
The ministère public may always attend the
implementation of directions even where it is not a main party to the action.
Article 164
Directions to be implemented before the court shall
take place in open court or in chambers according to the rules applicable to
oral arguments relating to substantive issues.
Article 165
The judge may proceed with, attend a direction or go
outside the court’s jurisdiction without being assisted by the clerk of the
court.
Article 166
The judge entrusted to proceed with a direction or to
supervise its implementation may give such other directions as would perfect
the benefits of the directions already given.
Article 167
The difficulties encountered in the course of the
implementation of directions shall be resolved, at the request of the parties,
on the initiative of the commissioned technician, or ex proprio motu, either by
the judge proceeding therewith or by the judge entrusted with the supervision
its implementation.
Article 168
The judge shall give an immediate ruling where the
difficulty arises during the course of the implementation of a direction with
which he is proceeding with or at which he is present.
Otherwise, the judge informally seised shall indicate
the date upon which the parties and, should the occasion arise, the
commissioned technician, shall be convened by the clerk of the court.
Article 169
Where there is an intervention in the proceedings by a
third person, the clerk of the court shall as soon as possible inform the judge
or the technician entrusted with the implementation of the directions.
The intervener shall be given the opportunity to make
submissions in relation to the directions which have already been carried out.
Article 170
Decisions relating to the implementation of directions
may not be impugned by way of application to set aside; they may be impugned by
way of an appeal or by way of a petition in cassation only where they are
brought with the judgment relating to the substantive issue.
They shall take the form of a simple notes recorded on
the file or on the transcript of the hearing, or where necessary, of an order
or a judgment.
Article 171
Decisions taken by a commissioned judge or by the
supervising judge shall not have the effect of res judicata over a
consideration of the merits the case.
Article 172
As soon as a direction has been implemented, the
carriage of proceedings shall be proceeded with at the initiative of the judge.
The latter may, within the limits of his jurisdiction,
hear immediately the observations of the parties or closing speeches and rule
ex tempore on their claims.
Article 173
The procès-verbaux, opinions or reports made at the
time or following the implementation of a direction shall be addressed or given
in the form of the original or a copy thereof to each of the parties by the
clerk of the court which provided for them or by the technician who drafted
them as the case may be. A note of the same shall be made on the original.
Article 174
The judge may have a sound, visual or audiovisual
recording made of all or part of the directions in relation to which he is
proceeding with.
The recording shall be kept by the clerk’s office of
the court. Each party may, at his own expense, ask to be provided a duplicate,
copy or a transcription thereof.
Article 175
The nullity of decision or instruments of implementation
relating to directions shall be subject to the provisions governing the nullity
of processual papers.
Article 176
Nullity shall affect only those directions which are
the subject-matter of an irregularity.
Article 177
The directions may be remedied or begun again, even
immediately, where the defect can be removed.
Article 178
An omission or an inaccuracy in a note intended to
show the observance of the formalities in relation to a direction shall not
render it null, where it is established by every means that the legal
requirements have, in fact, been observed.
CHAPTER II PERSONAL VERIFICATIONS BY THE JUDGE
Article 179
The judge may, in any matter, take personal cognisance
of the facts at issue, in order to verify them himself, the parties being
present or having been convened.
He shall proceed with the findings, evaluations,
appraisals or reconstructions which he shall deem necessary and, should the
occasion arise, by being present on the situs concerned.
Article 180
Where he does not proceed therewith immediately, the
judge shall fix the venue, day and time for the verification; should the
occasion arise, he shall appoint a member of the adjudicating panel to that
effect.
Article 181
The judge may, during the process of verification, at
the hearing or in relation to such other venue, call upon the assistance of a
technician, or hear the parties or such other person whose testimony is proper
to establishing the truth.
Article 182
A procès-verbal shall be drawn accounting for the
findings, evaluations, appraisals, reconstructions or declarations.
The drawing up of the procès-verbal may
notwithstanding the above, be substituted by a note in the judgment where the
case is adjudged ex tempore as by way of last resort.
Article 183
A judge who is causing to implement another direction
may, even where he is not a member of the adjudicating panel, proceed with the
personal verifications which the implementation of the direction shall render
appropriate.
CHAPTER III PERSONAL APPEARANCE OF THE PARTIES
Article 184
A judge may, at all events, order the parties, or one
of them, to appear in person.
Article 185
The personal appearance may only be ordered by the
adjudicating panel or by a member of such panel entrusted with the management
of the case.
Article 186
Where the personal appearance is ordered by a
panel-judge, it may decide that the appearance shall be before one of its
members.
Where it is ordered by the judge entrusted with the
management, he may proceed with the same himself or decide that the appearance
shall be before the adjudicating panel.
Article 187
The judge, in ordering as above, shall determine the
venue, date and time in relation to the personal appearance save where he shall
proceed with the same immediately.
Article 188
Personal appearance may be in chambers.
Article 189
The parties shall be examined in each other’s presence
save where the circumstances require them to be examined separately. They shall
have to be confronted where one of the parties so requests.
Where the appearance of one party only has been
ordered, such party shall be examined in the presence of the other party, save
where the circumstances require him to be examined immediately or out of the
other party’s presence, subject to the absent party’s right to be immediately
informed of the declarations made by the party so heard.
The absence of a party shall not prevent the testimony
of the other.
Article 190
The parties may be examined in the presence of a
technician and be confronted with witnesses.
Article 191
The parties shall answer personally to questions put
to them without being able to read from any notes.
Article 192
Personal appearances shall take place in the presence
of legal representatives of all the parties or on them being called.
Article 193
The judge shall put, where it seems necessary to him,
the questions which the parties shall submit to him after the examination.
Article 194
A procès-verbal shall be drawn up noting down the
statements of the parties and of their absence or refusal to answer.
The drawing up of the procès-verbal may
notwithstanding the above, be replaced by a note in the judgment where the case
is determined ex tempore as a decision of last resort.
Article 195
The examined parties shall sign the procès-verbal
after having verified or certified that it conforms to their statements in
which case the same is mentioned in the procès-verbal. Should the occasion
arise, it shall be indicated that the parties refused to sign or to certify the
same.
The procès-verbal shall, further, be dated and signed
by the judge and, should the occasion arise, by the clerk.
Article 196
Where one of the parties is unable to be present, the
judge who ordered the appearance, or the judge appointed by the adjudicating
panel to which he is attached may travel to him after having convened the
opponent to the same should the occasion arise.
Article 197
The judge may order the appearance of incapable
persons subject to the rules relating to the capacity of persons and to the
administration of evidence as well as their legal representatives or those
assisting them.
He may order the appearance of corporate entities
including public bodies or public corporations in the person of their authorised
representatives.
He may, further, order the appearance of any member or
agent of a corporate entity to be examined on facts personal to him as well as
those which ought to know by reason of his office.
Article 198
The judge may draw any conclusion in law from the
statements of the parties, from the absence or refusal to answer in relation to
a party and establish the same as likely factum probantia.
CHAPTER IV STATEMENTS OF THIRD PERSONS
Article 199
Where testimonial evidence is admissible, the judge
shall admit statements from third persons so as to provide guidance to him on
the facts at issue in relation to which they have personal knowledge thereof.
These statements shall be made in writing or brought by means of an inquiry,
depending on whether they are written or oral.
SECTION
I STATEMENTS IN WRITING
Article 200
Statements in writing shall be brought forward by the
parties or on the request of the judge.
The judge shall make available to the parties those
transmitted directly to him.
Article 201
The statements in writing shall have to be made by
persons who fulfil the conditions required to be heard as witnesses.
Article 202
The statement in writing shall contain an account of
facts which the maker thereof has witnessed or which he has personally noticed.
It shall indicate the surname, date and place of
birth, domicile and occupation of the maker as well as, where the same appears
necessary, his relationship, by blood or by marriage, to the parties, the link
of subordination to, of collaboration or joint interests with them.
Further, it shall indicate that it has been drawn up
for its production before a court of law and that the maker is aware that any
false statement on his behalf shall be punished by criminal sanctions.
The statement shall be written, dated and signed by
the hand of its maker. The latter shall have to annex thereto, by way of the
original or a photocopy thereof, any official document proving his identity
which includes his signature.
Article 203
The judge may always proceed by means of an inquiry to
hear the maker of a statement in writing.
SUB-SECTION
I GENERAL PROVISIONS
Article 204
Where an inquiry is ordered, cause against it may be
adduced by way of witnesses without any new decision.
Article 205
Any person may be heard as a witness save in relation
to those rendered unfit owing to a legal incapacity to stand as a witness
before a court.
Persons who may not stand as a witness may,
notwithstanding the above, be heard under the same conditions but without
taking the oath. Notwithstanding the above, descendants may never be heard on
the grievances brought before the court in relation to the partners to a
marriage in support of a petition for divorce or judicial separation.
Article 206
Any person called upon to testify shall be bound to do
so. Persons exhibiting a legitimate excuse may be exempted from giving their
testimony. Parents or relatives in direct line with one of the parties or a
partner or previous partners to a marriage, may object to giving testimony.
Article 207
Defaulting witnesses may be cited at their expense
where it is deemed proper that they be heard.
Defaulting witnesses and persons who, without any
legitimate excuse, has refused to testify or to take the oath may be ordered to
pay a civil fine from F 100 to F 10,000.
A person who shall show cause that he was unable to
attend on the appointed day may be exempted from the imposition of the fine and
the visit of the expenses of the citation.
Article 208
The judge shall hear the testimony of the witnesses
separately and in the order which he shall determine.
The witnesses shall be heard in the presence of the
parties or the latter being called.
As an exception thereto, where the circumstances shall
so require, the judge may ask a party not to be present during the testimony of
a witness, subject to the right of the latter to have the statements of the
latter produced to him immediately thereafter.
The judge may, where there is a risk of the loss of
the validity of proof, proceed without delay with a testimony-hearing of a
witness after having, wherever possible, called the parties.
Article 209
An inquiry shall take place in the presence of the
legal representatives of the parties or the latter being called.
Article 210
The witnesses shall state their surname, first names,
date and place of birth, domicile, occupation, as well as, should the occasion
arise, their relationship by blood or by marriage to the parties, or the link
of subordination to, of collaboration or joint interests with them.
Article 211
Persons who are heard as witnesses shall take the oath
to tell the truth. The judge shall remind them that perjury shall be punishable
by way of a fine or imprisonment.
Person who are
heard without taking the oath shall be informed of their duty to tell the
truth.
Article 212
Witnesses may not read from any notes.
Article 213
The judge may hear or examine the witnesses on all
facts in relation to legally admissible evidence, even where these facts are
not stated in the decision ordering the inquiry.
Article 214
Parties shall neither interrupt, nor question, nor
attempt to influence the witnesses who is giving
testimony, nor address them directly on pain of being excluded from attending
to the same.
After an examination of a witness, the judge shall,
where he shall deem it proper, put to the latter questions submitted to him on
behalf of the parties.
Article 215
The judge may recall the witnesses and may confront
them with each other or with the parties; should the occasion arise, he shall
proceed with a hearing in the presence of a technician.
Article 216
Save where they have been permitted or directed to
leave after having given their testimony, witnesses shall remain at the
disposition of the judge until the close of the inquiry or the hearing. They
may, until such time, add to or alter their testimony.
Article 217
Where a witness proves that it is impossible for him
to travel on the appointed day, the judge may allow him a time-limit or travel himself toward the former to receive his testimony.
Article 218
The judge who proceeds with an inquiry may, ex proprio
motu or at the request of the parties, convene or hear any person should he deem the same material for the manifestation of the truth.
Article 219
The testimony shall be recorded in a procès-verbal.
Notwithstanding the above, where the testimony is
received in the course of the hearing, a note shall simply be made in the
judgment of the surname of the persons heard and the result of their testimony
where the matter must immediately be adjudged as of last resort.
Article 220
The procès-verbal shall have to make a note of the
presence or absence of the parties, the surname, first names date and place of
birth, domicile and occupation of the parties heard as well as, should the
occasion arise, the oath taken by them and of their statements relating to
their relationship to the parties, the link of subordination to, of
collaboration or joint interests with them.
Each person heard shall sign the procès-verbal in
relation to his testimony after having verified or certified that it conforms with the same, in which case a note shall be made thereof in
the procès-verbal. Should the occasion arise, a note shall be made in relation
to his refusal to sign or to certify.
The judge may note in the procès-verbal his findings
in relation to the behaviour of a witness during a testimony-hearing.
The comments of the parties shall be noted down in the
procès-verbal, or shall be annexed to it where they are in writing.
Documents presented at the inquiry shall also be
annexed to the same.
The procès-verbal shall be dated and signed by the
judge and, should the occasion arise, by the clerk of the court.
Article 221
The judge shall grant leave to the witness, at his
request, to seek such expenses in relation to which he is entitled to being
paid.
SUB-SECTION
II ORDINARY INQUIRY
§ 1 Determination of facts to be proved
Article 222
The party requesting an inquiry shall have to state
the facts he shall substantiate.
It shall belong to the judge who orders the inquiry to
determine the material facts to be proved.
§ 2 Designation of witnesses
Article 223
It shall be incumbent upon the party who requests an
inquiry to state the surname, first names and domicile of the persons they
intend to produce as witnesses.
The same burden shall be incumbent upon the opponents
who intend to produce witness to in relation to those facts they contemplate
substantiating.
A decision ordering an inquiry shall indicate the
surname, first names and domicile of persons to be heard.
Article 224
Where the parties are unable to specify at the onset
the persons to be heard, the judge may nevertheless grant them leave to attend,
without any further formality, the inquiry with those person they intend to
produce as witnesses, or to inform the clerk’s office of the court, within a
time-limit as specified by the aforementioned judge, of the surname, first
names and domicile of the persons they intend to produce as witnesses.
Where the inquiry has been ordered ex proprio motu,
the judge, where he cannot indicate in his order the surname of the witnesses
to be heard, shall direct the parties to proceed as set out in the previous
sub-article.
§ 3 DETERMINATION
OF THE MANNER AND THE TIMETABLE OF THE INQUIRY
Article 225
A decision ordering an inquiry shall specify whether
it be conducted before the adjudicating panel, a member of such panel, or,
should the occasion arise, before any other judge of the court.
Article 226
Where the inquiry shall take place before the judge
who ordered it, or before one of the members of the
adjudicating panel, the decision shall indicate the day, time and venue where
it will be proceeded with.
Article 227
Where the judge designated by the court is not a
member of the adjudicating panel, the decision which ordered the inquiry may
limit itself to an indication of the time-limit within which it shall have to
be proceeded with.
Where the same is by way of a commission on behalf of
another court, the decision shall specify the time-limit within which the
inquiry shall have to be proceeded with. Such time-limit may be extended by the
president of the commissioned court and he shall inform the judge who ordered
the inquiry thereof.
The commissioned judge shall fix the day, time and
venue of the inquiry.
§ 4 SUBPOENA
OF WITNESSES
Article 228
Witnesses shall be subpoenaed by the clerk of the
court at least eight days before the date of the examination.
Article 229
The subpoenas shall indicate the surname and first
names of the parties and shall reproduce the provisions of the first two
sub-articles of Article 207.
Article 230
The parties shall be notified of the date of the
inquiry verbally or by ordinary letter.
SUB-SECTION III THE IMMEDIATE INQUIRY
Article 231
The judge may, at the hearing or in chambers, as well
as in any other venue where a direction is being carried out, hear immediately
those persons whose testimony he deems proper in view of establishing the
truth.
CHAPTER V DIRECTIONS CARRIED OUT BY A TECHNICIAN
Article 232
The judge may commission any person of his choice to
provide guidance to him by way of observations, consultation or by way of an
expertise on a question of fact which calls for the guidance of a technician.
Article 233
The technician, empowered by the judge by reason of
his qualifications shall have to fulfil personally the enterprise entrusted to
him.
Where the appointed technician is a corporate entity,
its authorised representative shall submit, for the judge’s approval, the
surname of the person or persons within its ranks who will ensure the
implementation of the direction on its behalf.
Article 234
The technicians may be recused for the same causes as
judges. Where it is a corporate entity, the recusal may be directed against the
corporate entity as well as against the natural person or persons approved by
the judge.
The party who intends to recuse a technician shall
have to do so before the judge who appointed him, or before the judge entrusted
with the supervision prior to the implementation of the directions or otherwise
shall do so on the discovery of a cause of recusal.
Where the technician shall consider himself to be
recusable, he shall have to declare the same immediately to the judge who
commissioned him or to the judge entrusted with the supervision.
Article 235
Where a recusal is justified, where a technician
refuses an assignment, or where there exists a lawful impediment, the judge who
commissioned the latter or the judge entrusted with the supervision of the
operations shall replace the technician.
The judge may also, at the request of the parties or
ex proprio motu, replace the technician who has failed in his duties after
caused him to provide explanations in relation to the same.
Article 236
The judge who has commissioned the technician or the
judge entrusted with the supervision may add to or restrict the assignment
entrusted to the technician.
Article 237
The commissioned technician shall have to fulfil his
enterprise conscientiously, objectively and impartially.
Article 238
The technician shall have to give his opinion on the
points he has been commissioned to examine.
He may not consider other questions except by virtue
of a written agreement by the parties.
He shall never express an opinion on a point of law.
Article 239
A technician shall have to respect the time-limits
imparted to him.
Article 240
A judge may not confer upon a technician such an
assignment as to reconcile the parties.
Article 241
The judge entrusted with the supervision of the
operations may attend those of the technician.
He may cause him to provide explanations and impart a
time-limit to him.
Article 242
The technician may receive oral or written information
from any person as long as their surname, first names, domicile and occupation
are specified as well as, where the same appears necessary, his relationship,
by blood or by marriage, to the parties, the link of subordination to, of
collaboration or joint interests with them.
Where the commissioned technician or the parties
request that these persons be heard by the judge, the latter shall proceed to
hear them where he considers such useful.
Article 243
The technician may request any documents from the
parties or third persons and the judge may provide for the same in case of
difficulty.
Article 244
The technician shall have to make known in his opinion
all the information which shall provide guidance on the area he has examined.
He shall be forbidden to reveal other information
which might have come to his knowledge in the course of implementing his
enterprise.
He may only refer to information lawfully received.
Article 245
(Decree No. 89-511 of 20 July 1989, sec.2, Official
Journal of 25 July 1989 in force on 15 September 1989)
The judge may always invite the technician to
complete, clarify or to explain his observations or conclusions either in
writing or at the hearing.
The technician may at any time seek a hearing before
the judge.
The judge may not, without having been put before the
observations of the commissioned technician, add to the assignment of the
latter or confer a complementary assignment upon another technician.
Article 246
The judge shall not be bound by the observations or
conclusions of the technician.
Article 247
Where the publicity of the technician’s opinion shall
cause to invade the privacy of personal lives or any other legitimate interest,
it may not be used for any other purpose other than in relation to the
proceedings except with a judge’s permission or with the consent of the party
concerned.
Article 248
The technician may not receive remuneration directly
from one party in any form whatsoever even as a reimbursement of outlays save
where so ordered by the judge.
Article 249
The judge may entrust the persons he has commissioned
to proceed with the finding of facts.
The examiner shall not formulate any opinion on the
factual and legal consequences which may result therefrom.
Article 250
Fact-findings may be ordered at any time including at
the conciliation stage or during the deliberation. In the latter event, the
parties shall be advised of the same.
The findings of fact shall be recorded down in writing
save where the judge shall decide for their oral presentation.
Article 251
The judge who orders a fact-finding exercise shall fix
the time-limit within which a report of the same shall have to be presented or
the date of the hearing at which the an oral report
shall have to be presented. He shall designate the party or parties who will be
bound to provide for an interim payment for remuneration of the examiner, which
shall be fixed by the judge.
Article 252
The examiner shall be notified of his assignment by
the clerk of the court.
Article 253
The report shall be delivered to the clerk of the
court.
A procès-verbal shall be drawn up of the reporting
presented verbally. The drawing up of the procès-verbal may, notwithstanding
the above, be replaced by a note made in the judgment where the matter is
adjudged immediately at last resort.
Documents in support of the fact-finding shall be
included in the file of the matter.
Article 254
Where a fact-finding has been ordered during the
deliberations, the judge, following the implementation of the direction, shall
order the reopening of the hearing where one of the parties so requests or
where the judge considers it necessary.
Article 255
The judge shall fix the payment to the examiner on
proof of the completion of his enterprise. He may deliver to him an enforceable
title.
Article 256
Where a purely technical question does not require
complex investigations, the judge may entrust the person he shall commission to
provide him with a simple opinion.
Article 257
A consultation may be ordered at any time including
during conciliation stage or during the deliberations. In the latter case, the
parties shall be informed thereof.
The opinion shall be presented orally save where the
judge requires it to be submitted in writing.
Article 258
The judge who orders an opinion shall fix the date of
the hearing at which it shall be presented orally or the time-limit within
which it shall be submitted.
He shall designate the party or parties who will be
bound to give a sum on accounts to the consultant for his payment, the amount
of which shall be fixed by the judge.
Article 259
The consultant shall be notified of his assignment by
the clerk of the court who will convene him should the occasion arise.
Article 260
Where the opinion is given orally, it shall be
recorded in a procès-verbal. The drawing up of the procès-verbal may,
notwithstanding the above, be replaced by a note made in the judgment where the
matter is adjudged immediately as of last resort.
Where the opinion is written, it shall be delivered to
the clerk’s office of the court.
The documents in support of the opinion shall be
included in the file of the matter.
Article 261
Where the opinion has been ordered during the
deliberations, the judge, following the implementation of the direction, shall
order the reopening of the hearing where one of the parties so requests or
where the judge shall deem it proper.
Article 262
The judge shall fix, on proof of the completion of the
enterprise, the remuneration due to the consultant. He may deliver to him an
enforceable title.
Article 263
An expertise shall not be ordered except in cases
where a finding of fact or consultation would not be sufficient to provide
guidance to the judge.
SUB-SECTION I THE DECISION PROVIDING FOR THE EXPERTISE
Article 264
Only one person shall be appointed as an expert, save
where the judge shall deem it proper to appoint several persons.
Article 265
The decision which provides for the expertise shall:
Set out the circumstances which shall make an
expertise necessary and, where applicable, which shall make the appointment of
several experts necessary;
Surname the expert or experts;
Specify the field of the enterprise of the expert;
Prescribe the time-limit within which the expert shall
have to give his opinion.
Article 266
The decision may also specify a date on which the
expert and the parties shall have to appear before the judge who has delivered
the same or before the judge entrusted with the supervision of the operations
so that the enterprise and, should the occasion arise, the timetable of the
operations, may be determined.
Documents useful for the expertise shall be given to
the expert at this conference.
Article 267
(Decree No. 89-511 of 20 July 1989, sec.3, Official
Journal of 25 July 1989 in force on 15 September 1989)
As soon as the decision appointing the expert is
delivered, the clerk of the court shall transmit to him a copy thereof by
ordinary letter.
The expert shall without delay notify to the judge of
his acceptance; he shall have to commence the expert operations as soon as he
has been informed that the parties has deposited by consignation the sum for
which they are held to contribute, or the amount of the first instalment as due
under the consignation order, save where the judge directs him to start
immediately his operations.
Article 268
The files of the parties or the documents necessary to
the expertise shall provisionally be kept at the clerk’s office of the court
subject to the authorisation of the judge to the parties who submitted them to
withdraw certain parts or to have copies delivered to them. The expert may
consult them even before accepting his assignment.
From the moment of his acceptance, the expert may, on
a marginal imprint or on the issuance of an acknowledgement, withdraw the files
or documents of the parties or have them transmitted to him by the clerk of the
court.
Article 269
(Decree No. 89-511 of 20 July 1989, sec.4, Official
Journal of 25 July 1989 in force on 15 September 1989)
The judge who orders the expertise or the judge
entrusted with the supervision shall fix, at the time of the expert is
appointed or as soon as he is able to do it, the amount of the sum to be put on
accounts for the payment of the expert as near as possible to the foreseeable
final payment. He shall nominate the party or parties who shall have to deposit
the sum on accounts to the registry of the court within the time-limit which he
shall fix; where several parties are named, he shall indicate in what
proportion each of the parties shall have to deposit. He shall, should the
occasion arise, adjust the instalments whereby the deposit may be constituted.
Article 270
(Decree No. 89-511 of 20 July 1989, sec.5, Official
Journal of 25 July 1989 in force on 15 September 1989)
The registrar shall invite the parties who are held to
contribute to the consignation, in reminding to them the provisions of Article
271, to deposit the sum on accounts to the registry within the time-limit and
in the manner specified.
He shall inform the expert of the deposit.
Article 271
(Decree No. 89-511 of 20 July 1989, sec.5, Official
Journal of 25 July 1989 in force on 15 September 1989)
In default of consignation within the time-limit and
in the manner specified, the appointment of the expert shall lapse save where
the judge, at the request of one of the parties availing himself of a lawful
excuse, shall grant a further time-limit or shall discharge the operation of
lapsing. The proceedings shall continue but it may be drawn from the abstention
or refusal to deposit any such inference as appropriate.
Article 272
The decision ordering the expertise shall be appealable
independently of the judgment on the merits of the case by leave of the first
president of the court of appeal where serious and legitimate reasons are
shown.
The party who wishes to appeal shall seise the
president who shall give a ruling in the form of a summary interlocutory
procedure. The summons shall have to be served within one month of the
decision.
Where he allows the request, the first president shall
fix the day where the matter shall be examined by the court, which shall be
seised and shall give a ruling as in matters of a fixed-date procedure or as is
provided under Article 948, as the case may be.
Where the judgment providing for the expertise has
also ruled upon the issue of jurisdiction, the [appeal] court may be seised of
the challenge in relation to jurisdiction even though the parties had not filed
an appellate plea against jurisdiction.
SUB-SECTION II OPERATIONS OF EXPERTISE
Article 273
(Decree No. 98-1231 of 28 December 1998, sec.6,
Official Journal of 30 December 1998, in force on 1 March 1999)
The expert shall have to inform the judge of the
progress of his operations and the steps taken by him.
Article 274
Where the judge attends the operation of the
expertise, he may record in a procès-verbal his observations, the explanations
of the expert as well as the statements of the parties and of third persons;
the procès-verbal shall be signed by the judge.
Article 275
(Decree No. 98-1231 of 28 December 1998, sec.7,
Official Journal of 30 December 1998, in force on 1 March 1999)
The parties shall have to deliver without delay to the
expert all documents which the latter shall deem necessary for the performance
of his enterprise.
Where there parties have defaulted, the expert shall
inform the judge thereof and the latter may order the production of documents,
should the occasion arise, subject to a civil penalty, or, as the case may be,
grant leave to him to proceed with the matter and to submit his report as it
stands. The trial court may draw any such inference in law in relation to the
failure to produce the necessary documents to the expert.
Article 276
The expert shall have to take into consideration the
observations or assertions of the parties, and, where they are written, shall
attach them to his report where the parties so request.
He shall have to indicate in his report the weight he
has attached to them.
Article 277
Where the ministère public is present at the
operations of the expertise, its observations shall, at its request, be recited
in the expert’s opinion as well as the weight which it has attached to them.
Article 278
The expert may take the initiative of obtaining the
opinion of another technician, but only in a specialised field different from
his own.
Article 279
Where the expert encounters difficulties which shall
obstruct the completion of his enterprise, or where an extension seems
necessary, he shall so report to the judge.
The latter in his ruling may extend the time-limit
within which the expert shall have to give his opinion.
Article 280
(Decree No. 89-511 of 20 July 1989, sec.6, Official
Journal of 25 July 1989 in force on 15 September 1989)
The expert who shows to have made progress may be
granted leave to draw a partial payment on the sum deposited.
Where the expert shows that the sum on accounts
allocated is insufficient, the judge shall order the deposit of a further sum
on accounts. In default of a deposit within the time-limit and in the manner
specified by the judged, and save where there is an extension of such a time-limit,
the expert shall submit his opinion as it stands.
Article 281
Where the parties have reached a settlement, the
expert shall record that his enterprise has become pointless; he shall so
report to the judge.
The parties may request the judge to deliver an
enforceable certificate in relation to the document containing their agreement.
SUB-SECTION III THE EXPERT’S OPINION
Article 282
Where his opinion does not need to be explained in
writing, the judge may grant leave to the expert to present it orally at the
hearing; a procès-verbal shall be drawn in relation to the same. The drafting
of the procès-verbal may, notwithstanding the above, be substituted by a note
in the judgment where the matter is adjudged ex tempore at last resort.
Otherwise, the expert shall have to file a report to
the clerk’s office of the court. Only one report shall be drawn up even where
there are several experts; in case of dissent, each one shall give his view.
Where the expert has obtained the
opinion of another expert in a different field as that of his own, such opinion
shall be attached, as the case may be, to the expert’s report, the
procès-verbal of the hearing or to the file of the matter.
Article 283
Where the judge does not find in the report matters as
to guide him, he may hear the expert, the parties being present or called.
Article 284
(Decree No. 89-511 of 20 July 1989, sec.7, Official
Journal of 25 July 1989 in force on 15 September 1989)
(Decree No. 98-1231 of 28 December 1998, sec.8,
Official Journal of 30 December 1998, in force on 1 March 1999)
Since the filing of the report, the judge shall fix
the payment of the expert, and namely in relation to the steps taken, the
respect of the time-limit imparted and the quality of the work furnished.
He shall grant leave to the expert to be paid up to
the amount of the sums deposited at the registry. He shall order, as the case
may be, either the payment of additional sums due to the expert in indicating
the party or parties who shall provide for the same, or the restitution of the
excess amount as deposited.
Where the judge considers fixing the payment of the
expert at an amount less than the sum requested, he shall first have to invite
the expert to submit his comments in relation to the same.
The judge may deliver to the expert, at his request,
an enforceable title.
Article 284-1
(Decree No. 89-511 of 20 July 1989, sec.8, Official
Journal of 25 July 1989 in force on 15 September 1989)
Where the expert so requests, a copy of the judgment
delivered upon consideration of his opinion may be delivered or given by the
registrar.
SUB-TITLE III DISPUTES RELATING TO DOCUMENTARY
EVIDENCE
SUB-SECTION I THE INCIDENTAL PLEA OF VERIFICATION
Article 285
Verification of handwriting under private signature
shall pertain to the jurisdiction of the judge seised of the main issue where
it is requested incidentally.
It shall pertain to the jurisdiction of the Tribunal
de grande instance where it is requested as a main issue.
Article 286
A plea of forgery against an authenticated instrument
of record shall pertain to the jurisdiction of the judge seised of the main
issue where it is brought incidentally before the Tribunal de grande
instance and the Court of Appeal.
In other cases, a plea of forgery shall pertain to the
jurisdiction of the Tribunal de grande instance.
SECTION I VERIFICATION OF HANDWRITING
Article 287
Where one of the parties denies the handwriting that
is attributed to him, or declares that he does not recognise that which is
attributed to its author, the judge shall verify the impugned handwriting save
where he is able to make a ruling without taking it into account. Where the
impugned writing relates only to certain points of the claim, the judge may
rule upon the other points.
Article 288
It shall belong to the judge to proceed with the
verification of the handwriting in the light of the material at his disposition
after having directed the parties, should the occasion arise, to produce all
documents so that he may compare them, and under his supervision, to have
samples of handwriting made up.
Article 289
Where he does not rule ex tempore, the judge shall
retain the handwriting to be verified and the exhibits for comparison or shall
order them to be deposited at the clerk’s office of the court.
Article 290
Where it is useful to compare the impugned handwriting
with such instruments in the possession of third persons, the judge may order,
even ex proprio motu and under a civil penalty, that those instruments be
deposited at the clerk’s office of the court in the form of the originals or
copies thereof.
He shall give all the necessary directions, and namely
those relating to the preservation, consultation, reproduction, return or
restoration of the instruments.
Article 291
Where necessary, the judge shall order the personal
appearance of the parties and, should the occasion arise, in the presence of a
consultant or shall give any direction.
He may hear the alleged author of the impugned
handwriting.
Article 292
Where a technician is called upon, the latter may be
granted leave by the judge to take out the impugned handwriting and the
exhibits for comparison, on a marginal imprint of the same having been entered,
or to have the same transmitted to him by the clerk of the court.
Article 293
Persons who witnessed the impugned
instrument being written or signed or those whose hearing appear useful in
eliciting the truth, may be heard as witnesses.
Article 294
The judge shall rule upon the difficulties in carrying
out the verification of the writing, in particular as to the determination of
exhibits for comparison.
His decision shall take the form either of simple
notes recorded on the file or in the minutes of the hearing, or, where
necessary, of an order or a judgment.
Article 295
Where it is ruled that the instrument was written or
signed by the person who denied it, the latter shall be ordered to pay a civil
fine of between F 100 and F 10,000 without prejudice to damages and interests
which may be claimed.
SUB-SECTION II THE VERIFICATION OF HANDWRITING
REQUESTED AS A MAIN ISSUE
Article 296
Where the verification of a
handwriting is raised as a main claim, the judge shall consider the
handwriting as recognised where the defendant, cited in person, does not appear.
Article 297
Where the defendant recognises the handwriting, the
judge shall find for the claimant.
Article 298
Where the defendant denies or does not recognise the
handwriting, the procedure set out under Articles 287 to 295 shall be followed.
It shall be likewise where the defendant who has not
been cited in person fails to appear.
SUB-SECTION I THE PLEA OF FALSIFICATION
Article 299
Where a writing under private
signature produced in the course of the proceedings is alleged to be forged,
the examination of the impugned writing shall be carried out as it is provided
under Article 287 to 295.
SUB-SECTION II FORGERY RAISED AS A MAIN CONTENTION
Article 300
Where the allegation of forgery of a
writing under private signature is raised as a main claim, the summons
shall indicate the grounds for the allegation and shall convey a precept to the
defendant to the effect that the latter shall declare whether or not he intends
to rely upon the instrument alleged to be forged or falsified.
Article 301
Where the defendant declares that he does not wish to
use the writing alleged to be forged, the judge shall find for the claimant.
Article 302
Where the defendant does not appear or where he
declares that he wishes to use the impugned writing, the procedure shall be
carried out as provided under Articles 287 to 295.
CHAPTER
II PLEA OF FORGERY
AGAINST AUTHENTIC INSTRUMENT OF RECORD
Article 303
A plea of forgery against an authentic instrument of
record shall be communicated to the ministère public.
Article 304
The judge may order the hearing of the person who drew
up the impugned instrument.
Article 305
The claimant whose plea of forgery fails shall be
ordered to pay a civil fine of F 100 to F 10,000 without prejudice to damages
which may be claimed.
SECTION
I THE INCIDENTAL
PLEA OF A FORGERY AGAINST AN AUTHENTIC INSTRUMENT OF RECORD
SUB-SECTION I THE INCIDENTAL PLEA RAISED BEFORE THE TRIBUNAL
DE GRANDE INSTANCE OR THE COURT OF APPEAL
Article 306
(Decree No. 82-716 of 10 August 1982, sec.1,
Official Journal of 17 August 1982)
The plea of forgery shall be entered by filing with
the clerk’s office-registry of a process by the party or his agent specially
empowered.
The process, in duplicate, shall have, under penalty
of it otherwise being inadmissible, to state precisely the grounds which the
party shall rely upon to establish the forgery.
One of the copies shall immediately be placed in the
file of the matter and the other, dated and imprinted with a seal by the
registrar, shall be returned to the party in order to give notice of the plea
to the defendant.
The notice shall have to be made by service to and by avocat
or by signification to the opposing party within one month as from the making
of the plea.
Article 307
The judge shall rule upon the forgery save where he
decides the case without taking into consideration the exhibit alleged to be
forged.
Where the alleged instrument to be forged relates only
to one of the heads of the claim, the judge may rule upon the other heads.
Article 308
It shall belong to the judge to admit or reject the
impugned instrument in the light of the material at his disposal.
Should the occasion arise, the judge shall give, as to
the forgery, all directions necessary and it shall be proceeded with as in
matters of verification of handwriting.
Article 309
The judge shall rule in the light of the grounds
stated by the parties and of those raised ex proprio motu.
Article 310
The judgment declaring the forgery shall be noted in
the margin of the instrument recognised as forged.
It shall specify whether the original of the authentic
instrument of record will be returned to the depository from which it was
obtained or will be kept at the clerk’s office-registry.
The implementation of these provisions shall be stayed
as long as the judgment has not become res judicata or until the acquiescence
of the losing party.
Article 311
Where there is a withdrawal or settlement in relation
to the plea of forgery, the ministère public may require all measures proper to
prosecuting a criminal action.
Article 312
Where criminal proceedings are brought against the
perpetrators of or accomplices to the forgery, the civil judgment shall be
deferred until after the criminal decision has been given, save where the main
issue may be ruled upon without taking into account the exhibit alleged to be
forged or save where there has been a withdrawal or settlement as to the
forgery.
SUB-SECTION II THE INCIDENTAL PLEA RAISED BEFORE OTHER
COURTS
Article 313
Where the plea is raised before a court other than the
Tribunal de grande instance or the court of appeal, the judgment shall
be stayed until a ruling on the issue of falsification has been given, save
where the impugned exhibit has been withdrawn so as it is possible to rule upon
the main issue without taking the same into consideration.
The plea of forgery shall be proceeded with as
provided under Articles 314 to 316. The process entering the plea of forgery
shall have to be lodged at the clerk’s office-registry of the Tribunal de
grande instance within the month of the decision to stay the judgment,
failing which the plea shall be disregarded and the impugned instrument shall
be considered to have been accepted as valid between the parties.
SECTION II THE PLEA OF FORGERY AS A MAIN CONTENTION
Article 314
The main claim of forgery shall be preceded by a plea
of forgery entered as set out under Article 306.
A copy of the process entering the plea shall be
attached to the summons which shall contain a precept to the defendant to
declare whether or not he intends to rely upon the instruments alleged to be
forged or falsified.
The summons shall have to be served within one month
of the plea of forgery being entered under penalty of it otherwise being
lapsed.
Article 315
Where the defendant shall declare that he does not
wish to use the instrument alleged to be false, the judge shall acknowledge the
point in favour of the claimant.
Article 316
Where the defendant fails to appear or to declare that
he wishes to use the impugned instrument, it shall be proceeded with as
provided under Articles 287 to 294 and 309 to 312.
Article 317
The party who invite that evidence shall be taken on
oath shall set forth the facts in relation to which it shall be taken.
The judge shall order evidence on oath where it is
permissible and shall specify the facts on which it shall be taken.
Article 318
Where the oath is called for ex proprio motu, the
judge shall determine the facts in relation to which it shall be taken.
Article 319
The judgment which orders the oath shall fix the date,
time and venue where it shall be taken. It shall formulate the question in
relation to which the oath is to be taken and shall point out that perjury will
expose a witness to criminal sentences.
Where the oath is called for in relation to a party,
the judgment shall specify further that the party in relation to whom the oath
is called for has failed in his claim where he refuses to take the oath and
fails to request one in return.
In all cases, the judgment shall be notified to the
party in relation to whom the oath is called for as well as to his agent should
the occasion arise.
Article 320
An appeal shall lie against
the judgment which orders or refuses to order a decisive oath independently of
the decision on the substantive issue.
Article 321
The oath shall be taken by the party in person and at
the hearing.
Where the party shows that he is unable to travel, the
oath may be taken either before a judge commissioned for that purpose who shall travel to the residence of the party, assisted by
the clerk or before the court of his place of residence.
At all events, the judgment shall be notified to the
party in relation to whom the oath is called for as well as to his agent should
the occasion arise.
Article 322
The person duly authorised as a legal representative
may not request an oath without showing a special power.
Article 323
Where the claim is made by or against several persons
with a common interest, each of them shall exercise and discharge insofar as
they relate to him, the rights and obligations of parties to the proceedings.
Article 324
(Decree No. 79-941 of 7 November 1979, Official
Journal of 9 November 1979 in force on 1 January 1980)
The acts performed by or against the persons with a
common interest shall neither benefit nor prejudice the others subject to the
provisions of Articles 474, 475, 529, 552, 553 and 615.
Article 325
An intervention shall not be allowed save where it is
connected to the claims of the parties by a sufficient link.
Article 326
Where the intervention may delay excessively the
judgment on the whole, the judge shall first rule upon the main cause of action
and thereafter consider the intervention.
Article 327
The intervention at first instance or on appeal shall
be voluntary or compelled.
Before the Cour de cassation, only a voluntary
intervention shall be admissible where it is accessory.
CHAPTER I THE VOLUNTARY INTERVENTION
Article 328
The voluntary intervention shall be principal or
accessory.
Article 329
The intervention shall be principal where it raises a
claim to the benefit of the party filing it.
It shall be admissible only where the party filing it
has the right to bring an action with regard to that claim.
Article 330
The intervention shall be accessory where it supports
the claims of a party.
It shall be admissible where its originator, in order
to preserve his rights, has an interest in supporting that party.
The accessory intervener may unilaterally withdraw his
intervention.
CHAPTER II COMPELLED INTERVENTION
SECTION I PROVISIONS COMMON TO ALL THIRD-PARTY PROCEEDINGS
Article 331
A third party may be joined for the purpose of being
cast in judgment by any party who has the right to bring a claim against the
former.
He may likewise be sued out by a party who has an
interest in making the judgment common to them all.
The third party shall have to be called in good time
to establish his defence.
Article 332
The judge may invite the parties to issue proceedings
against all interested persons whose presence seems to him necessary for the
resolution of the dispute.
In non-contentious matters, he may order proceedings
to be issued against persons whose rights or duties may be affected by the
decision to be taken.
Article 333
The third party against whom proceedings have been
issued shall be bound to proceed before the court seised of the original claim
without being able to challenge the territorial jurisdiction of the court even
by relying upon an argument of specific jurisdiction attributable to another
forum.
SECTION II SPECIAL PROVISIONS FOR CONTRIBUTION NOTICES
Article 334
The contribution shall be simple or formal depending
on whether the defendant seeking the contribution is himself being sued as
being personally liable or only as holder of a property.
Article 335
The defendant seeking a simple contribution shall
remain the main party.
Article 336
The defendant in formal contribution may always
request his withdrawal and that the person standing liable be substituted for
as the main party.
The defendant seeking a contribution, notwithstanding
the above, although allowed not to stand as a main
party may remain in the case to preserve his rights; the original defendant may
ask that he remains in the case to preserve his.
Article 337
The judgment delivered against the formal co-defendant
standing liable may, in all cases, be executed against the person seeking the
contribution on the sole condition that he has been notified.
Article 338
The taxable charges shall be recoverable against the
person seeking the contribution only in case of the insolvency of the formal
person standing liable to the contribution and on condition that the person
seeking the contribution remained in the case, even on an accessory basis.
TITLE IX B TESTIMONY OF A CHILD BEFORE A COURT OF JUSTICE
Article 338-1
(Decree No. 93-1091 of 16 September 1993, sec.20,
Official Journal of 17 September 1993)
(Decree No. 94-42 of 14 January 1994, sec.22,
Official Journal of 16 January 1994 in force on 1 February 1994)
Where a minor requests to be heard by virtue of
Article 388-1 of the Civil Code, the provisions as hereinafter shall be
applicable.
Article 338-2
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
The request shall be made without any formality to the
judge by the interested person. It may be made at any stage of the proceedings
and even for the first time on appeal.
Article 338-3
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
No appeal shall lie against the decision ruling on the
request to be heard made by the minor.
The decision whereby the testimony is ordered may,
notwithstanding the above, be amended or set aside by another special reasoned
decision where the judge has been apprised of a good reason which shall render
a testimony of the minor unsuitable under the conditions previously provided.
Article 338-4
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
The decision ordering the testimony may take the form
of simple notes recorded on the file or the transcript of the hearing.
Article 338-5
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
A convocation to his testimony-hearing shall be
transmitted to the minor by recorded letter with the advice of delivery slip
sought, doubled by an ordinary letter to that effect.
The convocation shall inform him of his right to
testify alone, or in the presence of an avocat or a person of his
choice.
On the same day, the clerk’s office-registry shall
inform the legal representatives of the parties by ordinary memorandum and, in
default thereof, the parties themselves by recorded letter with the advice of
delivery slip sought of the decision ordering the testimony. The notice shall
reproduce the provisions of Article 338-3.
Article 338-6
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
Where the judge is seised of a request to give
evidence in the presence of the parties and the minor, the testimony-hearing
may take place immediately. Where such is not proceeded
with immediately, the convocation of the minor and the information provided in
the second sub-article of Article 338-5 shall be given orally.
Article 338-7
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
Where the minor appears alone in view of giving
evidence, the judge shall give notice to him of his right to give evidence in
the presence of an avocat or a person of his choice. Where the minor
shall exercise such a right, the testimony-hearing shall be postponed at a
later date.
The avocat retained by the minor shall inform
the judge of the same.
Where the minor shall request to give evidence in the
presence of an avocat and where he does not choose one himself, the
judge shall behest the Chairman of the Bar to appoint an avocat.
Article 338-8
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
The decision refusing the testimony of the minor shall
be transmitted by the clerk’s office-registry to the minor by recorded letter
with the advice of delivery slip sought doubled with an ordinary letter. As the
case may be, a copy of the decision shall be transmitted to the avocat
of the minor by a simple memorandum.
Article 338-9
(Inserted by Decree No. 93-1091 of 16 September
1993, sec.20, Official Journal of 17 September 1993)
The court sitting as a panel-judge may hear a minor or
appoint one of its members to proceed with the testimony-hearing of the minor
and to give an account of the same thereafter.
TITLE X THE WITHDRAWAL,
RECUSAL AND REFERRAL
Article 339
The judge who considers there exists as regards to his
person grounds of recusal, or who thinks he should in conscience abstain, shall
have himself replaced by another judge nominated by the president of the court
to which he it is attached to. The replacement of a judge of the tribunal
d'instance shall be appointed by the president of the tribunal de grande
instance in default of a presiding judge.
Article 340
Where the abstention of several judges prevents the
court seised from ruling, it shall be proceeded as in
matters of referral on grounds of reasonable suspicion.
Article 341
(Decree No. 78-330 of 16 March 1978, sec.7,
Official Journal of 18 March 1978 amendment, JORF of 24 March 1978 and JORF of
10 November 1978)
The recusal of a judge shall be permissible only for
causes provided by the law.
As it is provided under Article L.731-1 of the Code of
Judicial Organisation, and save where there exist special provisions for
certain courts, the recusal of a judge may be requested:
1° Where he himself or his
spouse has a personal interest in the dispute;
2° Where he himself or his
spouse is the creditor, debtor, presumed heir or donee of one of the parties;
3° Where he himself or his spouse is related by blood
or marriage with one of the parties or his or her spouse up to the fourth
degree of kinship inclusive;
4° Where there have been or have proceedings between
himself or his spouse and with one of the parties or his or her spouse;
5° Where he has, previously, had knowledge of the
matter in the capacity of a judge or arbitrator or where the has counselled one
of the parties;
6° Where the judge or his
spouse is entrusted of the administration of the property of one of the
parties;
7° Where there exists a link
of subordination between the judge or his spouse and one of the parties or his
or her spouse;
8° Where there has been a
notorious friendship or enmity between the judge and one of the parties;
The ministère public, as a joined party may be recused
on the same grounds.
Article 342
The party who wishes to recuse a judge shall have, on
pain of inadmissibility, to do so as soon as he has knowledge of a ground of
recusal.
In no case may the request for recusal be made after
the end of the oral arguments.
Article 343
The recusal shall have to be made by the party himself
or his agent specially empowered.
Article 344
The request for the recusal shall be made by a
processual instrument lodged at the clerk’s office of the court to which the
relevant judge is attached or by declaration taken down by the clerk in a procès-verbal.
The request for the recusal shall have, under penalty
of it otherwise being inadmissible, to specify precisely the grounds for the
recusal and be subjoined with the necessary supporting exhibits.
An acknowledgement of the request shall be issued.
Article 345
The clerk shall transmit to the judge a copy of the
recusal application against him.
Article 346
The judge, as soon as he receives the copy of the
application, shall have to withdraw until the recusal has been ruled upon.
Where there is an urgency,
another judge may be nominated, even ex propio motu, to carry out the necessary
procedures.
Article 347
Within eight days of this communication, the impugned
judge shall have to make known in writing, either an acquiescence of the recusal
or the grounds for which he opposes the same.
Article 348
Where the judge acquiesces, he shall immediately be
replaced.
Article 349
Where the judge opposes the recusal or does not give
any reply, the recusal application shall be ruled upon at once by the court of
appeal or, where it is directed against a member of a court composed of
occupational and lay judges, by the president of the court in question, whose
ruling shall not be appealable.
Article 350
The clerk shall transmit the recusal application with
the judge’s reply or a note of his failure to reply, to the first president of
the court of appeal or to the president of the court composed of occupational
and lay judges.
Article 351
The matter shall be determined without the necessity of
calling the parties or the impugned judge.
A copy of the decision shall be delivered or
transmitted by the clerk to the judge and to the parties.
Article 352
Where the recusal application is granted, the
replacement of the judge shall be proceeded with.
Article 353
Where the recusal application is dismissed, the
applicant may be ordered to pay a civil fine from F 100 to F 10 000 without
prejudice to the damages which may to be claimed.
Article 354
The acts performed by the impugned judge before he had
knowledge of the recusal may not be challenged.
Article 355
The recusal against several judges shall have, under
penalty of it otherwise being inadmissible, to be filed in the same plea, save
where a ground for the recusal comes to light subsequently to the same.
It shall then be proceeded with as provided in the
following Chapter even though a referral has not been requested.
CHAPTER III THE REFERRAL TO ANOTHER COURT
SECTION I THE REFERRAL FOR REASONABLE SUSPICION
Article 356
The application for referral on grounds of reasonable
suspicion shall be subject to the same conditions of admissibility and of form
as is the case for a recusal application.
Article 357
The application to bring the matter out of the
cognisance of the judge shall immediately be communicated by the clerk to the
president of the court.
Article 358
Where the president considers the application
well-founded, he shall assign the matter to another panel of the same court or
refer it to another court of the same kind.
Where the president considers that the matter shall
have to be referred to another court, he shall transmit the file to the
president of the next superior court who shall designate the court of referral.
A copy of the decision shall be transmitted by the
clerk to the parties.
An appeal shall not lie against the decision; it shall
be binding on the parties and on the ad quem referral judge.
Article 359
Where the president opposes to the application, he
shall transmit the matter with the reasons of his refusal to the president of
the next superior court.
Such court shall, in chambers, rule within one month
after having heard the ministère public and without the necessity of calling
the parties.
Copy of the decision shall be transmitted by the clerk
to the parties and to the president of the court whose cognisance is at issue.
Article 360
Where the application is well-founded, the matter
shall be referred to another panel of the court originally seised, or to
another court of the same kind as the latter.
The decision shall be binding on the parties and on
the ad quem referral judge. No appeal shall lie against it.
Article 361
The proceedings shall not be stayed before the court
whose cognisance is at issue.
The president of the court seised of an application
for referral may notwithstanding the above, order, according to the
circumstances, that the court suspected of bias shall refrain from ruling until
the judgment of referral.
Article 362
Where there shall be a referral, it shall be proceeded
with as provided under Article 97.
Article 363
The dismissal of the referral application may carry
the application of provisions of Article 353.
SECTION
II REFERRAL ON GROUNDS
OF A RECUSAL AGAINST SEVERAL JUDGES
Article 364
Where the referral is requested on grounds of a
personal recusal against several judges of the court seised, it shall be proceeded as in matters of referral on grounds of reasonable
suspicion after that each impugned judge has replied or has allowed the
time-limit to the reply to expire.
SECTION III THE REFERRAL ON GROUNDS OF PUBLIC SECURITY
Article 365
The referral on grounds of public security shall be
ordered by the Cour de cassation on the behest of the procureur général
before such court.
Article 366
(Decree No. 81-500 of 12 May 1981, sec.11, Official
Journal of 14 May 1981 amendment JORF of 21 May 1981)
Provisions of Articles 360 to 362 shall be applicable.
TITLE XI INCIDENTS OF THE PROCEEDINGS
CHAPTER I THE JOINDER AND DISJOINDER OF PROCEEDINGS
Article 367