Law of France
From Wikipedia, the free encyclopedia
In academic terms, French law can be divided into two main categories: private law ("droit privé") and public law ("droit public").
Judicial law includes, in particular:
- civil law ("droit civil"); and
- criminal law ("droit pénal").
Administrative law includes, in particular:
- administrative law ("droit administratif"); and
- constitutional law ("droit constitutionnel").
Together, in practical terms, these four areas of law (civil, criminal, administrative and constitutional) constitute the major part of French law.
The announcement in November 2005 by the European Commission that, on the basis of powers recognised in a recent European Court of Justice ("ECJ") ruling, it intends to create a dozen or so European Union ("EU") criminal offences suggests that one should also now consider EU law ("droit communautaire", sometimes referred to, less accurately, as "droit européen") as a new and distinct area of law in France (akin to the "federal laws" that apply across States of the US, on top of their own State law), and not simply a group of rules which influence the content of France's civil, criminal, administrative and constitutional law.
Contents |
[edit] Droit civil
The term "civil law" refers most usually, in France, not to the French legal system as a whole (cf. "common law") but simply to the law of obligations, i.e., to tort law and contract law. Hence, tort and contract rules are set forth in France primarily in the Code civil, or Civil Code.[1]
[edit] Droit pénal
The major criminal law provisions are set forth in the Code pénal, or Criminal Code. For example, the Code pénal proscribes many offences against the person (homicide, assault, etc.) and many economic offences (theft, money laundering, etc.), amongst others. However, a number of criminal provisions are contained in stand-alone legislation which, for whatever reason, has not been codified (defamation, etc.).[2]
[edit] Droit administratif
Administrative law governs the relationship between the State (in its various manifestations) and private citizens or organisations. The rules of administrative law are set forth in particular in the Code administratif, or Administrative Code, although - as with criminal law - there are also a large number of legislative and regulatory texts that stand alone, such as the texts governing the status and powers of industry regulators (most of which have the status of autorité administrative indépendante or AAI).
Administrative law in France can be considered to comprise two main categories: general administrative law and sector-specific administrative law.
[edit] Droit administratif général
Administrative law is a fully fledged area of law in France, enjoying - like civil law (dealt with in the civil courts) and criminal law (dealt with in the criminal courts) - its very own court system (the administrative courts).
Indeed, administrative law, in its most general sense, concerns the control exerted by these administrative courts over the actions of public servants - what we might call in English 'judicial review'. If you wish to contest a decision by a French municipal authority, for example, you could ask an administrative court to consider the decision's legality.
The main grounds for contesting a decision's legality before an administrative court are: (i) incompétence (the decision maker did not have the authority to make the decision) (ii) vice de procédure (the decision maker failed to follow the correct procedure) (iii) vice de forme (the decision instrumentum did not contain appropriate mentions - a rare occurrence) (iv) violation de la loi (the decision maker broke a clear statutory requirement) (v) erreur de fait (the decision maker based his decision on a fact which was not well established) (v) erreur dans la qualification des faits (the decision maker based his decision on a correct fact, but did not give appropriate legal significance to it) and (vi) erreur de droit (the decision maker did not correctly interpret the law).
[edit] Droit administratif sectoriel
With the opening to competition of industries such as gas, electricity, broadcasting and telecommunications, the laws introduced to govern such competition in the public utility sectors (collectively known as droit sectoriel) have created the most animated manifestation of administrative law in France today, and keep a large number of lawyers - both avocats (lawyers admitted to the bar) and juristes d'entreprises (in-house lawyers) - gainfully employed. Indeed, the only time most French lawyers will go anywhere near an administrative court is to argue a point of droit administratif sectoriel, in the context of a dispute with an AAI.
[edit] The Example of Electronic Communications Law
Perhaps the most active area of droit administratif sectoriel is the converging domain of telecommunications and broadcasting (collectively known as electronic communications).
The rules applicable to the establishment and operation of electronic communications networks (e.g., building a cellular telephone network), and to the offering of electronic communications services (e.g., offering a service on that same network allowing subscribers to communicate with one another), are set forth in the Code des postes et communications électroniques (Postal and Electronic Communications Code). The State is represented in this area by the AAI known as the Autorité de régulation des communications électroniques et des postes (ARCEP).
The rules applicable to any content delivered over an electronic communications network (e.g., providing videos on demand over the aforementioned cellular network) are set forth in a stand-alone law of 1996, which can be referred to as the Broadcasting Act. The State is represented in this area by the AAI known as the Conseil supérieur de l'audiovisuel (CSA).
Both ARCEP and the CSA make decisions affecting market players on a regular basis. Such decisions may be "regulatory" in nature (i.e., they pertain to the sector as a whole) or they may be judicial (i.e., they settle a dispute between two or more market players).
When a market player wishes to contest a regulatory decision, it can appeal directly to France's highest administrative court, the Conseil d'Etat (whereas when it wishes to contest a judicial decision, it must appeal to the Court of Appeal, which is a civil court and not an administrative court - see Article L.36-8(IV) of the Postal and Electronic Communications Code).
[edit] Other Public Utility Laws
Gas / electricity / transport/water
[edit] Droit constitutionnel
/
[edit] Droit communautaire
Traditionally, Community law has been viewed as a body of rules which are transposed automatically (in the case of a regulation) or by national legislation (in the case of a directive) into French domestic law, be it civil, criminal, administrative or constitutional.
However, in November 2005 the Commission announced that, on the basis of a (somewhat controversial) ECJ court decision (holding that the EU had the right to require Member States to introduce criminal laws because, in the case at hand, it was necessary to uphold EU legislation on combatting pollution), it intended to create a dozen or so EU criminal offences, creating echos of the federal laws which exist in the United States of America. Indeed, the Commission - led by its Commissioner for Justice and Home Affairs Franco Frattini - insists that the principle created in the ECJ court decision applies across all policies, not just policies concerning pollution.
Subsequently, in May 2006, the Commission formally submitted to the EU Parliament and EU Council (which have co-decision powers) the first draft directive aiming to put this new prerogative into effect. The draft concerns counterfeiting (for example, of car parts, drugs, or children's toys) and requires each Member State to set the following penalties for what it terms "organised counterfeiters": a period of imprisonment of up to four years and a fine of up to €300,000. The Parliament began its consideration of the draft directive in March 2007.
[edit] References
- Clavier, Sophie M. (July 1997). "Perspectives on French Criminal Law" (DOC). . San Francisco State University Retrieved on 2008-05-07.
[edit] Bibliography
The following is a short bibliographic "essay" on selected resources, mostly available in English but also some in French, specifically for introducing a non-lawyer to the French legal system. It is necessarily evaluative but nevertheless neutral with respect to point of view.
The introduction to the French legal system currently most accessible to non-lawyers would be that provided by Wikipedia articles; see this article plus two others, and follow the various links in each:
- http://en.wikipedia.org/wiki/Category:French_law
- http://en.wikipedia.org/wiki/Legal_systems_of_the_world
For a clear and easily-followed outline of the French legal structure, see:
The beginner should take especial note of:
With regard to print resources, it may be best to refer to one of the Que Sais-Je? series of "pocketbook" volumes, which provide readable short summaries; for instance:
- Aubert, Jean-Luc. Introduction au droit (Presses Universitaires de France, 2002) ISBN 2-13-053181-4, 127 pages (many editions)
Also recommended are:
- Cairns, Walter. Introduction to French law (London : Cavendish, 1995) ISBN 1-85941-112-6.
- Elliott, Catherine. French legal system (Harlow, England : Longman, 2000) ISBN 0-582-32747-4.
- Starck, Boris. Introduction au droit 5. éd. (Paris : Litec, c2000) ISBN 2-7111-3221-8.
- Bell, John. Principles of French law (Oxford ; New York : Oxford University Press, 1998) ISBN 0-19-876394-8, ISBN 0-19-876395-6.
- Dadomo, Christian. The French legal system 2nd ed. (London : Sweet & Maxwell, 1996) ISBN 0-421-53970-4.
- West, Andrew. The French legal system 2nd ed. (London : Butterworths, 1998) ISBN 0-406-90323-9.
For both an overview and pointers toward further study, see the excellent introduction to the "France" section in
- Reynolds, Thomas. Foreign law : current sources of codes and basic legislation in jurisdictions of the world (Littleton, Colo. : F.B. Rothman, 1989- ) v. (loose-leaf) ; 24 cm. ; Series : AALL publications series 33 ; Contents v. 1. The Western hemisphere -- v. 2. Western and Eastern Europe -- v. 3. Africa, Asia and Australia. ISBN 0-8377-0134-1 ; http://www.foreignlawguide.com/
Perhaps the best single-volume treatise on the French (and other foreign) legal systems is
- David, René. Major legal systems in the world today : an introduction to the comparative study of law 3rd ed. (London : Stevens, 1985) ISBN 0-420-47340-8, ISBN 0-420-47350-5 ; (Birmingham, AL : Gryphon Editions, 1988) ISBN 0-420-47340-8.
French legal history appears throughout most of the above. Two volumes which address the subject specifically are:
- Brissaud, Jean. A history of French public law (Boston : Little, Brown, and Company, 1915) Series : The Continental legal history series v. 9 ; Note : A translation of pt. II (omitting the first two sections of the introduction) of the author's Manuel d'histoire du droit français.
- Brissaud, Jean. A history of French private law (Boston : Little, Brown, and Company, 1912) Series : The Continental legal history series v. 3. Note : Translation of pt. III (with the addition of one chapter from pt. II) of the author's Manuel d'histoire du droit français.
For the original French text, see
- Brissaud, Jean, 1854-1904. Manuel d'histoire du droit français (Paris : Albert Fontemoing, 1908).
Some other references for French legal history might include:
- Castaldo, André. Introduction historique au droit 2. éd. (Paris : Dalloz, c2003) ISBN 2-247-05159-6.
- Rigaudière, Albert. Introduction historique à l'étude du droit et des institutions (Paris : Economica, 2001) ISBN 2-7178-4328-0.
- Thireau, Jean-Louis. Introduction historique au droit (Paris : Flammarion, c2001) ISBN 2-08-083014-7.
- Bart, Jean. Histoire du droit (Paris : Dalloz, c1999) ISBN 2-247-03738-0.
- Carbasse, Jean-Marie. Introduction historique au droit 2. éd. corr. (Paris : Presses universitaires de France, 1999, c1998) ISBN 2-13-049621-0.
[edit] See also
|
|||||||||||
