Justice and procedure

► Full Reference : Ch. Lefort, Procédure civile (Civil Procedure), 1st ed. 2005 – 5th ed., 2014, Dalloz, “Cours Dalloz-Série Droit privé” Series, 539 p. - ► General presentation of the book (written in French) : This « Course », whose 5th edition has just been published, shows to what extent civil procedure is a major discipline of private law insofar as it contributes to the effective realisation of the rights of persons. Procedure is the law of the civil trial, which it organises. This textbook sets out, in a first part, the principles governing the subjective right granted to a litigant to have access to a judge. In a second part, it details the main mechanisms governing the conduct of the civil trial. Designed mainly for undergraduate and Master students, this book will also be of interest to all those wishing to know and understand the course of the civil trial. - 📕Read the back cover (in French) - 📕Read the table of contents (in French) - 📚See the entire collection in which the book is published. -

In its judgment of 23 July 2014, MM. B., A. et C., the Conseil d'État (French Council of State) shall transmit a  Question prioritaire de constitutionnalité – QPC (Priority Question of Constitutionality) to the Conseil constitutionnel  (French Constitutional Council) about the compliance of the procedural organization of the Cour de discipline budgétaire et financière – CDBF (French Court of fiscal and financial discipline) in terms of constitutional principle impartiality. Indeed, the jurisprudence of the Constitutional Council has incorporated in the constitutional corpus the principle of impartiality, objectively designed   as judicial jurisprudence and the jurisprudence of the European Court of Human Rights have done and have imposed the organs exercising power sanction must give to see their impartiality (definition of the "objective impartiality") to third parties who must have confidence in this body which has power to impose sanctions.

Political power has often difficulties, or takes a long time to admit the principles of law, such as express the judges. So it was quite certain that the penalty proceedings held before the Autorité de Régulation des Communications Electroniques et de la Poste -ARCEP  (French Regulatory Authority for Electronic Communications and Post, as the investigation body and the judgment body were not sufficiently distinct crumpled the constitutional principle of impartiality. It was acquired about 15 years. Yet the organization has continued. It has been enough that an operator has been sanctioned. He used the procedure of Question Prioritairre de Constitutionnalité -Q.P.C.  Priority Question of Constitutionality) and Numéricable July 5, 2013 decision by the Constitutional Council came to declare that any sanction proceedings before ARCEP unconstitutional, because of objective procedural partialité, thus causing difficulty to the regulator. It took until the 0rdonnance of March 12, 2014 and finally the decree of 1st August 2014 to organize an efficient sanctions procedure, making this time an intern wall within the ARCEP between the services responsible for the instruction and those which are responsible for judging. The great judge Pierre Drai used to say: "Ne pas respecter le droit coûte cher (Do not respect the law is expensive)". We see here that this is true also for the Government which writes laws and regulations. So, for months, the regulator has been without power, to the delight of the operators, who often are tacticians or turbulent.

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► Référence complète : M.-A. Frison-Roche, "Experts et procédure : l'amicus curiae" ("Experts and procedure: the amicus curiae"), Revue de droit d'Assas, october 2012, pp. 91-94 - 📝read the article (in French) - ► English Summary of the article: A recent thesis has argued that amicus curiae is becoming a common principle of Procedural Law. This shows its importance. The fact that the mechanism, the character, is designated by a Latin formula leads us to suspect that something is being concealed that legal technique ordinarily forbids: it is the legal expert and the party's expert, which is what the amicus curiae most often is, either one or the other, or both at the same time. Therefore, removing the prudish cloak of Latin, it is these two difficulties that must be addressed. If we exclude the legal expert, it is because "jura novit curia" ("the court knows Law". But this rule, which recalls the principle that "no one is supposed to be ignorant of the law", merely indicates a sharing of the burden of evoking facts and Law between the parties and the judge (Motulsky) and not a presumption of knowledge. Consequently, the modest, and therefore self-confident, judge has no reason, either psychological or legal, to shy away from a legal expertise. As for the party's expert, or the judge's expert who is highly influenced by a party, a profession, a social group, in short, a judge's expert who is in fact an expert held by a party, this can only be a problem if the judge cannot keep his distance from this expert whose opinion is biased by the weight of the party. But first of all, any opinion is biased. Whether it is given in bad faith or good faith, it is biased, and in rhetoric we know that an opinion biased in good faith is more dangerous than a bought opinion, because the latter is known to be twisted by self-interest. In this respect, the person who listens to it, the judge, knows the difference. Indeed, the legal system that recognises the party's expert and the amicus curiae, i.e. North American Law or European Union Law, draws the necessary procedural consequence: they include the party's expert opinion in the adversarial debate. It is the principle of adversarial debate, the principle of principles in the conduct of proceedings, that makes amicus curiae acceptable and welcome, since it provides the judge with a scientific input that the latter does not have. -

► Full Reference: M.-A. Frison-Roche, Le transfert de la compétence normative d'édiction des lois et règlements en matière de droit civil, de la métropole aux institutions propres à la Nouvelle-Calédonie. Étude pour le Congrès de Nouvelle-Calédonie (The transfer of the normative power to enact laws and decrees in the field of civil law from metropolitan France to institutions specific to New Caledonia. Study for the Congress of New Caledonia), 2012, 88 p. - La confection de ce rapport a été faite à partir des travaux sur les textes, des lectures et des réflexions, mais aussi de nombreuses rencontres avec les parties prenantes sur place. Le séjour et la remise du rapport ont donné lieu à de nombreuses interventions publiques. L'on peut notamment se référer à la conférence Le transfert du droit civil, une opportunité pour la Nouvelle-Calédonie, donnée au Congrès de Nouvelle-Calédonie. En outre, de nombreuses interviewes ont été données à la télévision, dans le presse écrite et à la radio.   Lire la table des matière du rapport. Lire le rapport dans son intégralité. Lire un interview dans la presse à propos de ce travail. Voir la conférence donnée en métropole à ce propos.   Lire le résumé du rapport ci-dessous.

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► Full Reference: J.-M. Chevalier, I. Ekeland, M.-A. Frison-Roche & M. Kalika, Internet et nos fondamentaux ("Internet and our Fondamentals"), PUF, 2000, 128 p. - ► English general presentation of this book and its summary: The Internet creates an impression of extreme novelty. Indeed, the fundamentals, have changed, as much in economics, management as in law. e-management, e-commerce, e-finance: all disciplines must rebuild their rules, so that the behaviours of actors are in a new way framed. The Internet is not just a new way of communicating. It introduces new behaviours, new rules, some say a new world, perhaps a new life for pioneers of a new kind. This impression of extreme newness is the sign of a revolution, because the facts about the Internet do not seem to be explainable by any previously established rule: the principles to which we must refer have changed, the fundamentals that enable us to translate the world into abstractions, to understand it and to dominate it, are in mutation. How can we understand the Internet? Not necessarily by delving into its technical and everyday aspects, but by confronting it with the fundamentals of the various disciplines in order to measure which key notions the Internet is abusing, which it is destroying and which it is imposing. What remains of our ways of thinking and practising science, law, economics and management? What are these disciplines built on? How can we understand them and bring them together again, under the impact of the Internet? The ambition of this book is to shed light on these new fundamentals, to tackle the conceptual revolution that Internet technology is bringing with it.     -   Content : Introduction, p. 7 Internet et la recherche en sciences exactes et naturelles ("The Internet and research in the natural sciences"), p. 19 Les bouleversements du droit par Internet ("The upheaval of law caused by the Internet"), p. 37 Les fondements des sciences économiques interpellés par Internent ("The foundations of economics challenged by the Internet"), p. 77 Internet et les sciences de gestion : l’émergence du e-management ("The Internet and management sciences: the emergence of e-management"), p. 103 -  

► Full Reference: M.-A. Frison-Roche, in collaboration with Serge Bories, "La jurisprudence massive" ("The Massive Jurisprudence"), D. 1993, chron., pp. 287-330 - 📝read the article (in French) - ► English Summary of the article: The term "jurisprudence" is likely to have several meanings: on the one hand, jurisprudence stricto sensu, that emanating from the High Courts; on the other hand, "massive jurisprudence", designating all legal decisions rendered by the courts. This study of "mass case law" is divided into two parts: the first sets out the advantages of analysing mass judgments (I.), and the second develops the method that should be used to study these judgments (II.). The analysis of massive jurisprudence is of threefold interest: educational, scientific and practical. Educational, in that it provides a more concrete, comprehensive and detailed view of the subject being taught. Scientific, in that it provides a global perspective, making it possible to take a closer look at reality and thus analyse the phenomena of pluralism in case law and anticipate 'elite case law' or legislative developments. And lastly, it is practical, in that it enables legislators to learn as quickly as possible about the practical application of the law and its consequences, so that they can potentially react to counter any perverse effects and/or use this information to adapt their legal policy decisions. The analysis method involves 3 stages. Firstly, a prior qualitative analysis of the banal judgment must be carried out, based on the extraction of key words and concepts contained in the decision, in order to transform the raw information into data. Next, categories of analysis need to be established, based on the structure of the data collected and the research hypotheses, in order to process the mass of refined data collected. It is also essential to have access to all the data used to adopt the decision. In the final stage, complementary methods, such as studying the case file or interviewing magistrates, should be added to the textual analysis. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law