French Judicial System

French Judicial System Lecturer Ovidiu-Horia MAICAN1 Abstract The principle of separation of powers was not very popular among the framers of the French Constitution. As a result, in the Constitution of the Fifth Republic, to the Judiciary was reserved a subordinate position to the executive. The composition of the Judiciary has been left in the hands of the Government. Judges in France work under the Ministry of Justice. After the setting - up of the Higher Council of Magistracy and a special statute for the membership of the judicial bodies, the independence of the Judiciary has been somewhat enforced. Keywords: France, constitution, judiciary, Constitutional Council. JEL Classification: K33 1. Introduction The main difference between the French and American judicial systems is that the French courts can not promote reform of past legislation because of changing notions of constitutional rights. The Conseil Constitutionnel, whose main function is to supervise the constitutional conformity of acts of Parliament, is not a judicial body. The regular administrative courts and the Conseil d'Etat, the supreme administrative court, have rejected the idea to become constitutional judges. The two French Supreme Courts do not develop reasons in the ways U.S. courts do. The Cour de Cassation, the Conseil constitutionnel, and the Conseil d'Etat may be called upon to increase their exercise of conflicting decisions. The emerging issue of precedence of international agreements over national laws may bring the French courts closer to judicial review. 2 2. General aspects In accordance with their respective legal systems, France and Germany possess a primary judicial authority at the level of first instance. The nature and status of the court in question may be of lower or higher order, contingent upon the monetary value at stake in a given case.3 In France, the "Tribunal d'Instance," which is the lower local district level court, has a monetary threshold of 10,000 € and is presided over by a sole judge. Conversely, the "Tribunal de Grande Instance," which handles cases above the aforementioned threshold, is typically comprised of a panel of three judges (or one judge if the proceedings are classified as a "référé"). In expeditious circumstances, or with mutual consent between the involved parties, an urgent protocol may be employed.4 For instance, the adjudication of patent and trademark disputes falls under the purview of the "Tribunal de Grande Instance," while the "Tribunal d'Instance" exercises sole authority over particular types of conflicts, including disputes between landlords and tenants. Significantly, the 1 Ovidiu-Horia Maican - Faculty of Law, Bucharest University of Economic Studies, Romania, . For a comprehensive view see Bernard Rudden, Review of book "An English Reader's Guide to the French Legal System. By Martin Weston. [Oxford: Berg Publishers Ltd.1991. Xi 155 Pp. Inc. Bibliography and Index]", International and Comparative Law Quarterly 40, no. 3 (1991), pp. 755-56. doi:10.1093/iclqaj/40.3.755; Cristina Elena Popa Tache, Le dynamisme du droit international public contemporain et la transdisciplinarité, Préface de Florent Pasquier, Ed. L`Harmattan Paris, la collection «Le droit aujourd’hui», 2023, pp. 15-28. 3 Paul Ranjard, Wan Hui Da IP Agency, Comparative study between the Civil Procedures of France, Germany and China, 2011, https://ipkey.eu/sites/default/files/legacy-ipkey-docs/7--doccentre-civil-cc3-aw4-002-comparative-study-on-civil-procedures-offrance--germany-and-china-en.pdf, p. 7. 4 Ibid, p. 7. 2 Perspectives of Law and Public Administration Volume 12, Issue 4, December 2023 675 latter court lacks the competence to adjudicate intellectual property disputes, regardless of their financial magnitude.5 Several other types of tribunals exist, including the Commercial Courts and the “Conseils de Prud’Hommes”. The Commercial Courts comprise non-professional judges who possess business experience and come from the private sector. This tribunal holds exclusive jurisdiction over disputes involving merchants, banks, commercial entities, and unfair competition matters, as well as commercial transactions. On the other hand, the “Conseils de Prud’Hommes” constitutes a tribunal whose judges are also sourced from the private sector and retain exclusive jurisdiction over cases pertaining to employment contract issues. Furthermore, it is notable that the tribunal of proximity, also referred to as the "juridiction de proximité," possesses authoritative power in regard to civil cases concerning lawsuits of a personal nature or actions pertaining to movable property, so long as they do not surpass a threshold of 4,000 euros.6 The notion of supervision can be regarded as a tertiary level of jurisdiction that is delimited to specific matters, typically pertaining to points of law, and is intended to oversee the accurate execution of the law. The jurisprudential functions of the "Cour de Cassation" in France and the German Federal Supreme Court, known as the "Bundesgerichtshof," are noteworthy.7 Nonetheless, the French court system's dichotomy truly came to fruition following the inception of the Conseil d'Etat and the Councils of Prefectures (Conseils de préfecture) in 1800, and subsequently with the enaction of the law on 24 May 1872.8 The aforementioned law effectively acknowledged the independent judicial authority of the Conseil d'Etat and consequently signified a shift towards a system of "delegated" justice from the former system of "retained" justice in which the ultimate authority resided with the executive branch. Such a transition marks a significant development in the establishment of an autonomous and impartial judiciary. Significantly, the aforementioned legislation established a Tribunal des conflits, with the responsibility of resolving conflicts that might arise between the two judicial hierarchies, albeit without possessing the status of a supreme court. The Conflicts Tribunal is constituted by an equitably balanced representation of members from both the Cour de Cassation and the Conseil d'Etat. In France, two categories of customary tribunals can be identified, namely judicial courts and administrative courts. It is noteworthy that the former jurisdiction is not limited to the dispensation of criminal justice alone but extends to matters of civil justice as well. 9 3. Organisational aspects Undeniably, the judicial system in France has consistently incorporated both individual judges and collective multi-judge panels within their court organization. There exists a number of instances in which single-judge courts have been utilized throughout the course of history. Some notable examples include the judge for summary interlocutory proceedings, known as the "juge des référés", the bankruptcy judge, also referred to as the "juge commissaire en matière commerciale", the previous "juge de paix", or justice of the peace, and the district court, commonly den (...truncated)