The French Legal System The French judicial system has developed through many stages during the nation’s history, and is deeply rooted in three major influences of the King, the people, and the outside. The first judicial system, a Private Reaction system, was established at the founding of France. A judicial system was then established after the Revolution of 1789. The judicial system after the Revolution was based on the principle of legal offenses and punishment. This was stimulated by English law and was the Imperial Penal Law Stage.
In 1804 Napolean wrote the Civil Code to prevent the total ruling of outside forces or a King. Two other written codes that were established during this stage were the Code of Criminal Instruction of 1808 and the Penal Code of 1810. These codes allowed all French laws to be easily accessible to the public and mostly codified with a written legislative body. Since the 1789 Revolution, many reforms and changes have gone into fully developing the current French judicial system. The Fifth Republic was established with the 1958 constitution.
This constitution was then revised in 1962 and provided France with a powerful president, along with a less powerful bicameral legislative branch. The first president to be elected for a 5 year term into the Fifth Republic by direct popular vote was Charles De Gaulle and is currently Nicolas Sarkozy. The bicameral legislative branch consists of a 331 member Senate, and a 577 National assembly. The Senate is indirect elections by the Electoral College every 3 years; electing a new 1/3 of the Senate allowing all elected officials to hold office for 9 years.
The National Assembly is directly elected and may be dissolved by the current president every 5 years. Throughout the constitutional judicial system, there are four leading political parties: Socialists, Rassemblement pour la Republique (RPR), Union pour la Democratie Francaise (UDF), and the French Communist party. The Fifth Republic has the President appoint the Prime minister but they must be from different parties. The French judiciary system is an independent system. Meaning their decisions are not controlled by the executive and legislative branches.
The French judicial system is divided into the judicial order (private law) and administrative orders (public laws) of court. The judicial order of courts judges both civil and criminal cases. Civil law deals with cases concerning private individuals such as a dispute over property lines. When solving disputes using civil law, only plaintiffs receive damages rather than fines or sentences of imprisonment. Since civil law deals with private individual cases, the hearings are open to the public unless a juvenile is part of the case.
Criminal law is also under the French judiciary system. When a criminal case is presented to the court the accused party is entitled to representation by a lawyer (advocate). Before the trial even begins, lawyers prepare documents and evidence to present to the judge. After the judge reviews this information, they question the offender(s). The questions asked are based only on the information provided. Offender(s) are innocent until proven guilty. Once an offender(s) is proven guilty by the judge, he then is given a sentence.
However, for the most severe criminal cases, a single judge does not determine the verdict, for a trial by jury is used. Judges and prosecutors play a very unique and important role in the French Judiciary. The core of the legal system is made up of a body of civil servants and magistrates of which there are two groups, sitting magistrates and standing magistrates. The sitting magistrates’ task is to deliver verdicts. They are judges and presiding judges in the various tribunals. Standing magistrates basically make up the prosecution.
Their task is to defend public order and demand the Law be enforced. This group may include public prosecutors, counsels for the prosecution and deputy public prosecutors. When a case has been referred to courts, both criminal and civil cases are tried in the same court, it is the public prosecutor who orders an investigation by the criminal investigation department. After the investigation, the public prosecutor decides whether to close the file or to continue the process and bring the offender or offenders to court.
If there is doubt with the investigation, an examining judge is brought in to pursue the investigation by questioning the accused, and if the examining judge believes it is necessary to move forward then the case is brought before the appropriate tribunal. The examining judge has nothing to do with the subsequent court proceedings, his role is investigatory only. Tribunals consist of three magistrates, a presiding judge and two assessors, along with a jury of nine. The jury is drawn by lots from citizens of at least 23 years of age and older.
During the trial hearing the persons accused are questioned by the presiding judge. Next, speeches are heard from witnesses, the defense, and the deputy public prosecutor that was over the investigation. The tribunal is left to discuss before arriving at a verdict and sentence. Decisions are not required to be unanimous but a clear majority must rule. Cases tried in the Assize Court, which preside over the most serious criminal offenses and don’t sit in often, are seen by judges from the court of appeals.
Judges are viewed as civil servants, but they are required to go through a very competitive process on their road to becoming a judge. After initial studies in the field of law, prospective judges enter initial training at the French National College for the Judiciary which takes approximately three years. This training is costly and the French government spends roughly 30 million annually on judicial training. At the completion of training, judges are subjected to a competitive examination which determines whether or not they are placed in a tribunal as a judge.
After they are placed, they cannot be moved or promoted without their consent, meaning that their tenure is more or less unlimited as long as they remain in good standing. Careers of judges are overseen by the High Council of the Magistry. The Administrative Order of Courts judges must litigate against public bodies. The Conseil d’Etat hears cases against executive decisions. The Administrative Order of Courts has the power to overrule governmental decisions and regulations that do not comply with the constitution, statutory law, or general principles of law.
Conflicts between the judicial order of courts and the administrative order of courts are settled by special court called Tribunal of conflicts. Both the judiciary and the administrative courts cannot rule upon the constitutionality of statutory law. The Constitutional Council, which is technically not part of the judiciary, decides whether legislation upholds the constitution prior to its promulgation. The Constitutional Council may refuse statutes as unconstitutional, even when they contradict the principles of the 1789 Declaration of the Rights of Man and of the Citizen or the European Convention on Human Rights.
The members of the Constitutional Council serve nine year terms, with three new members being elected every three years. The current Fifth Republic judicial system in France has many similarities to the United States while still holding many important differences. They are both based upon a constitution that serves to protect freedom and equality among all. The French legal system is based on written laws by the people and for the people. The French system looks very similar to ours but the questioning and judging of facts and laws is dealt with differently than the United States.
France combines both principles of adversarial representation and inquisition. The French use the adversarial principle allowing each party being tried the right to be represented by a lawyer or avocat. This is the same for in the United States. The French then also combine this principle with the principle of inquisition. This means that instead of the avocat questioning the accused party a sitting judge or magistrate conducts the questioning in an un-bias method.
The sitting magistrate has previously studied the case and will make judgment on the acquired information and the avocat’s representation of the party of the French written laws and facts. France also has a legal system based on civil law tradition where the United States legal system uses common law. The French judicial system is mostly written through codes. These codes present the proper laws and punishment for situations that may arise. The United States on the other hand relies heavily on case law and precedent in the system of common law.
The common law used in the United States has specific cases and concludes unique rules for each individual case. Civil law in France is based on written codes and has unique rules that are then applied to different cases. ? Like many nations, the French legal system developed through the stages of its country’s history. The Napoleonic Code played a major role in the development of France’s judicial system. Civil law and criminal law are used in the French legal system. France and the United States have similar judicial systems, but their systems were developed a completely different way.