Overview of the Problems of French Civil Procedure

Abstract

As with any system governed by the rule of law, in order properly understand France's institutions we need look at its history. From March through August 1790, in the midst of the French Revolution, a great debate was held in the Assembly, the purpose of which was reform the judicial system, to make it simpler, quicker and less costly (Article 20, section 2e, of the Act of August 16 and 24, 1790). As these 18th Century reformers, many of whom were themselves lawyers, explained, their project was the fruit of three centuries' experience of a paralyzing and excessively complex judicial system and procedure under the Ancien Regime. The aims of our modern-day reformers have not changed, and are often expressed in the same manner. Having said this, in 1790 the intention of the reformers was do away with an excessively complex systemthe result of overlapping jurisdictions that had arisen in the course of the gradual development of the State system and its slow ascendancy over the feudal and ecclesiastical systems. Judges were hated, as members of a privileged caste. Civil procedure borrowed many practices from canon law, although it failed codify them sufficiently, despite the 1667 ordinance known as Code Louis2 the first major attempt at codification before Napoleon. Since 1958, the legislators of the Fifth Republic have continued strive for simplicity, speed and low cost, although for a very different reason: the extraordinary pressures which the judicial system has been subject since the Second World War. The number of actions in the civil courts has increased three or fourfold, and continues increase at an average rate of 15% every five years. One of the major issues discussed in 1790 was whether a jury should be used in civil proceedings as well as in criminal proceedings. Once again, it was perhaps the obsession with simplicity, speed and cost that was behind the decision not use a jury in civil proceed-