FRANCE Law and Practice Contributed by: Barbara Levy, Paul Talbourdet and Alison Vogt, De Pardieu Brocas Maffei
following the expiry of relevant time limitations) and those that have not become final. In addition, a judgment may be contentious or non- contentious ( jugement gracieux ). A contentious judg - ment settles a dispute, whereas a jugement gracieux is rendered in non-contentious matters. French scholars also make a distinction between judgments rendered by adversarial hearing ( juge- ments contradictoires ) (ie, in the presence of both/ all parties concerned and after both/all parties have presented their cases), on the one hand, and judg - ments assumed to have been rendered by adversarial hearing ( jugements réputés contradictoires ) and judg - ments rendered by default ( jugements par défaut ) on the other hand. Default judgments arise in circum - stances where a defendant fails to appear before the court in a case brought by a claimant. Even though not present before the court, the defendant is bound by the court’s ruling and is subject to any sanction imposed by the court. To qualify as such, a default judgment must fulfil two cumulative conditions: the judgment must have been rendered in last resort and the defendant must not have been served with the document that instituted the proceedings. A judgment will be réputé contra- dictoire if only one of these two conditions is fulfilled. Opposition ( opposition ) appears in the French Code of Civil Procedure as the main remedy against judgments rendered by default; opposing a default judgment sus - pends its execution. However, filing an opposition is not de facto an obstacle to provisional execution, as generalised by Decree No 2019-1333 of 11 December 2019. Another useful distinction can be drawn between the following: • judgments rendered on the substance of the case, which rule on all or part of the merits, or rendered on a procedural exception (eg, the means by which the interested party or occasionally the court sua sponte – under conditions provided by law and without regard to the merits of the claim – chal - lenges the procedural irregularities or deficiencies of the right of action); and
• interim or provisional judgments, which involve no prejudgment of the decision on the merits and are designed to preserve a situation of fact or of law, to preserve evidence, or to ensure that the ulti - mate judgment in a case will be capable of being enforced. The key distinction is between enforceable and unen - forceable judgments. In principle, judgments will be enforceable after all ordinary rights of appeal have been exhausted or following the expiry of the relevant time limitations. Provisional Enforcement By way of exception and before Decree No 2019- 1333 of 11 December 2019, provisional enforcement could be ordered at the request of the parties or sua sponte each time the judge deemed it appropriate and compatible with the nature of the matter, and where it was not prohibited by law. In addition, summary orders ( ordonnances de référé ), decisions containing provisional orders ( mesures provisoires ) governing the course of a proceeding, orders providing for protec - tive measures ( mesures conservatoires ) and directions of the pre-trial judge ( juge de la mise en état ) granting an interim payment (provision) to a creditor were all enforceable provisionally by law. Decree No 2019-1333 of 11 December 2019 reforming French civil procedure established that “first-instance judgments are enforceable provisionally by law unless the law or the judgment handed down provides oth - erwise” (new Article 514 of the French Code of Civil Procedure). In other words, provisional enforcement is now automatic and is attached to first-instance judg - ments without the need for the judge to order it. The decree thus reverses the rules previously in force in judicial proceedings, which required the claimant to request that provisional enforcement be ordered. The principle of the provisional enforcement by law of first-instance judgments is only applicable to judicial proceedings initiated on or after 1 January 2020 and is now a general rule: • except as otherwise provided by law (eg, certain judgments are not provisionally enforceable by law in matters of civil status or family);
188 CHAMBERS.COM
Powered by FlippingBook