Talk:Cour de cassation

From Academic Kids

There were two inacuracies : The Cour de cassation is not the only court of last resort (no court in France has universal juridiction), and the cours d'appel do not seat in each departement. I beefed up the article to tell about other court of last resort (now Cour de cassation might not be the best title). I believe that what I wrote is correct, but law is not my trade. If something is unclear because of my unorthodox english, just ask on this page, I will try to help. Didup 20:30 27 May 2003 (UTC)

I can't write it in English : "La Cour de cassation juge la forme et non le fond"

The Cour de cassation breaks ("casse" -> cassation) a decision it's not a second appeal. This court will judge if law was respected in the "Cour d'appel" most of the decisions are relative to the respect of procedure and will not "drastically change the way in which the Civil code or other statutes are interpreted". But a decision can also consider that the Code Civil (for instance) was misinterpreted (thus the first cour d'appel didn't respect the law), in that case other courts should apply the interpretation given by the Cour de cassation if they don't the risk to see their decisons broken is obviously very high. Ericd 11:00, 19 Sep 2003 (UTC)

For "La Cour de cassation juge la forme et non le fond",it could be "The Cour de cassation judge form and not substance". Maybe not the best translation possible, but I hope it make sense. It is a common saying. Fond (substance) means mostly facts here (that is what "le juge du fond" means in the Court's decisions, the judge that states the facts of the case, that is the lower court, and the Cour de cassation sticks to its findings). Then "form" might be somewhat weak, as it suggests procedure only, while it should means both procedure and substantive law. Indeed, the Declaration of the Rights of Man and of the Citizen states that "The law is the overt expression of the general will" (where law means parliament made law). As a consequence, the traditional doctrine is that judge should have no part in it (the current doctrine if there is such a thing seems to be much more willing to recognize that judges do create rules). It is true that procedure is the basis for most of the Court's decisions. Moreover, the Cours d'assises decisions, which get much attention, contains no reasoning, so they will not be annuled for reason of substantive law (maybe they could if the sentence was beyond what the law allows, I do not know if such a thing ever happended).

However, the primary duty of the Court is to ensure a uniform interpretation of the law. And however comprensive the law codes might be, there are gaps that the court must fill, sometimes creatively. A famous and recent exemple is its 2000 ruling on the so called question of wrongful birth, the Perruche decision (BTW, it was the last time the Court was really in the news, so it is rather uncommon). The question was whether a child born with severe handicaps, after a medical analysis failed to diagnoses rubella in his then pregnant mother, could sue for damages. His parents had been awared damages, but they had also sued on their child's behalf and the Cour d'appel (Paris) had denied damages there. There is no know medical treatment that would have permitted, following a proper diagnosis, to avoid or limit his handicap, a proper diagnosis would only have allowed his mother to choose abortion. What is called the "visa", the law that the court names to ground its decisions is a very thin basis. It consists in articles 1165 and 1382 in the Civil Code, which states

• Art. 1165: Les conventions n'ont d'effet qu'entre les parties contractantes ; elles ne nuisent point aux tiers, et elles ne lui profitent que dans le cas prévu par l'article 1121 .
• Art. 1382: Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer.

In english, that might sound like (improvements welcomed)

• Art 1165: Contracts have effects only between the parties to the contract. They do no harm to others, and profit them only as stated in article 1121 (1121 is irrelevant in this case)
• Art 1382: Anyone who causes a tort to someone else must make good of it.

There is nothing obvious for or against the ruling in this. The decision contains virtually no reasoning (not unusual that). The court the case was first remanded to (Orléans) resisted the decision, which the Court stated again in assemblée plenière. Most doctrinal writers opposed the decisions too. It caused some upheaval, and the parliament quickly made a law to settle the question, voiding the court decision for the future ('no one may call being born a tort').

This is just an example maybe an extreme one, to show that the court does not merely correct errors. I agree with you however that "drastically changes" sounds a bit strong, particularly if one compares with what the US supreme court does (Perruche is not Roe v. Wade). Didup 00:08, 24 Sep 2003 (UTC)

I think "forme" refers more to structure (skeleton) and "fond" is more like basis; the c.d.c. has an adjectival power that effects the Code Civil, it is the Code Civil that works on individual cases through the lower courts. I don't think it really translates well into English. I vaguely remember that when we discussed this famous saying in our Philosophy of Law class at McGill that the focus was on how the c.d.c. with the swift action of its pen could make drastic changes to the law, but had no power to effect individual cases, that must be applied by the courts below (hence the "breaking" of the judgment that comes before it, it does not reverse a judgment as is the common practice in most common law appellate courts). Does that help? Alex756 07:12, 25 Sep 2003 (UTC)

Big problem ! It seems there is also a Belgian Cour de Cassation. Ericd 01:18, 29 Sep 2003 (UTC)

Actually most francophone countries that have civil law systems once based on French colonialism have a Cour de cassation (I think there is already one african country linked to this page like that). I don't think that is a big problem, just write another paragraph about the Belgian court differences. Alex756 02:00, 29 Sep 2003 (UTC)

I don't know anything about the Belgian Cour... While in african countries it must be more or less the same the Belgian system can be different and for NPOV we should also include the Flemmish name... I've no idea about this... Is there a Belgian here ? Ericd 02:22, 29 Sep 2003 (UTC)

I've just asked one. Alex756 05:03, 29 Sep 2003 (UTC)

His answer: "Hof van Cassatie". Alex756 22:36, 29 Sep 2003 (UTC)

Parquet

"The Prosecutor is a magistrate"

• I think English "magistrate" is not an appropriate translation for French "magistrat": if I understand well, magistrates in English-speaking countries are junior judges, whereas in France magistrats are full-time judges (excluding e.g. members of labour courts) as well as public prosecutors (in general they are graduates of the Ecole de la magistrature)

(in common language, in a wider sense, magistrat refers also to the President of the Republic and to mayors, i.e. people holding high public office). Magistrats du parquet are not granted by statute the same independence as magistrats du siège (judges).

• The members of the parquet of the Cour de cassation are called "prosecutors" in the article (and in the Ministère de la justice site), but this name is misleading as they don't "prosecute" in the criminal cassation procedure (they've got more or less the same role as commissaires du gouvernement of administrative courts; they're also heard in all civil cassation cases, whereas the ministère public seldom plays a role in civil procedure at first instance and appeal levels). See e.g. the Kress judgement of the ECHR for a comparison with their administrative and European counterparts. Apokrif 10:43, 18 Mar 2005 (UTC)