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CALLING PANORAMA OF RECENT JURISPRUDENCE

by Jean Buffet

President of the honorary Chamber at the Court of cassation

This panorama does not address all issues relating to the appeal. It is limited to the points on which, in recent times, the Court of cassation, especially by its second Civil Chamber, was conducted to evolve, to clarify the application of new provisions, to clarify or adjust its jurisprudence.

In some respects (legal remedies, baseline state including scheme), it is also beyond the strict framework of the appeal itself.

It features here or there or forward-looking critical remarks expressing that the only opinion of those who made them.

Will be successively addressed:

I - the admissibility of the appeal;

II - the notice of appeal;

III - State implementation;

IV - the application of the Decree of 28 December 1998 and the "recent entries";

V - the devolutive effect of the appeal.

I. THE ADMISSIBILITY OF THE APPEAL

1. it is not to review here all the difficulties relating to the purposes of estoppel which can interfere with the review of the dispute by the Court of appeal. In particular, the notion of indefinite application, constitutive element of judgement first, which gives place to enough social Chamber judgments, and the specific arrangements of the appeal in the law of collective proceedings, as well as temperament that is "call void" (1) exceed the scope of the present overview.

A general comment can be made. Appellate courts are not always sufficiently vigilant on duty (and not the power) that their responsibility to check ex officio the admissibility of the appeal on the opening of this remedy. This duty, of public order, laid down by article 125 of the NCPC.

This check must always be made, because a judgment pronounced on the merits, when the call was not open, incurs the cassation, pronounced possibly office, then even though the respondent did not raise the inadmissibility of the appeal (2).

The same duty applies to the appellate judges regarding the time required for the remedy.(3)

1. lack of call.

2. each year past brings a lot of decisions of cassations judgments which ignore or misunderstand the scope of the provisions relating to the delayed appeal (art. 544 and 545 of the NCPC), to the appeal which must be authorized (art. 272 and 380 of the NCPC), call prohibits corrigenda judgments when the rectified decision moved in force of res judicata (art. 462al. 5, the NCPC). For its part, the 2nd Civil Chamber is called quite often to remind that for repossession, the call is not open against judgements that have not ruled on a substantive way (article 731 of the former CPC) (4).

3. as required by article 544 of the NCPC, only the device of a judgment must be examined to find out if the first judges have decided the main or a part of the main. A question apparently remains pending: the judgment which, in its operative part, condemned to the payment of an allowance and ordered an expertise, allows an immediate call? A divergence seems to oppose on this point the 1st and the 3rd civil rooms. For the 1st room (October 19, 1999, appeal 97 - 11.988(a)), the call would be admissible because judges, allocating a provision, would have retained the principle of an obligation to indemnity and thus ruled at the bottom. The third room on the other hand (October 7, 1998, Bull III, no. 186), the decision on the provision does not decide a part of the main. It is permissible to think that the doctrine of the 3rd bedroom is more in keeping with the provisions of article 544 of the NCPC (5).

4. two recent cases may deserve to be reported:

* a judgment which shall decide on the appeal for review against a decision of last resort is not subject to appeal (2nd Civ., 21 September 2000, Bull II, no. 131);

* the provisions of articles 544 and 545 of the NCPC, in what they provide in some cases a call delay, apply to judgments rendered by the judge's execution (2nd Civ., 18 February 1999, Bull II, no. 33).

2 lateness of the call.

5 A recent times, the 2nd Civil Chamber asked as a principle that the periods allowed for appeals do not run when the judgment a quo is erroneous on qualifying entry, unless the Act of notification of the judgment indicated the path of recourse which was actually open (June 3, 1999, Bull II, no. 108), and then, in a more general waythat the lack of mention, or the erroneous entry in the Act of notification of a judgment, of the open remedy, its time or its terms (cf. art. 680 of the NCPC) does not run the appeal period (May 3, 2001, Bull II, no 85). (6)

6. a recent judgment (2nd Civ., March 7, 2002, Bull II, no. 30, Procedures, April 2002, no. 70) pushed far enough that case-law holding that a regular notification (made by the registry) subsequent to a meaning wrong on the terms of the call that did not run the appeal period, was ineffective so that the appeal period had not run.

7. article 680 of the NCPC also provides that the Act of notification of a judgment must include reference to the penalties incurred by the author of an improper or dilatory action. But, unlike other information required by the same article, the absence of such a reference does not prevent the notification sets the starting point of the time limit for appeal (2nd Civ., May 30, 2002, Bull II, no. 112).

8. it is worth noting that supra merely to state that the appeal period does not run, without holding that the Act of notification incomplete or inaccurate is invalid, despite the sanction of nullity enacted by article 693 of the NCPC. The ineffectiveness of the Act with regard to the appeal period seems sufficient and more appropriate sentencing with regard to the objective pursued by the requirement of the required entries. The meaning of a judgment a double effect: 1 / run the periods allowed for appeals; 2 / allow to compulsory execution (article 503 of the CPF). It has not considered that ignorance of the requirements of article 680 of the NCPC may, by an invalidation of the Act's significance, deprive the Act of efficiency on this second point.

9. with regard to the starting point of the periods allowed for appeals, the 2nd Civil Chamber (December 20, 2001, Bull.II, no. 197, d. 2002, p. 1165, note critical P. Julien) has taken up the case law of the social room who admits that a second notification of the judgment poses a new deadline from its date, provided that it has been carried out within the period opened by the first notification. It is a development limited to the rule according to which, in case of two successive notifications of the same judgment, the first notification, if it is valid, does the period (2nd Civ., February 23, 1994, Bull II, no. 66).

10 regarding even the appeal period, the 2nd House civil (4 October 2001, Bull II, no. 149) held that an appeal by declaration at the registry, the day after the last day of the appeal period was admissible, since the appellant had established (in this case by an admission of bailiff) that he had been able to drop 19 hours before his act due to the closure of the registry. As any delay expires the last day to 24 hours (art. 642 NCPC), that judgment has been that guarantee to litigants all of the time that the law gives them. (7)

11. examination of the lateness of the call cannot disguise the application of article 528-1 of the NCPC introduced into the Code by Decree of July 20, 1989. (8) this provision, 'remedies police instrument' (L. Cadiet, JCP 1 May 2002, p. 824), which was designed not to be res judicata in a State of fragility for too long, for the sole benefit of losing parts waiting for a remedy, the intervention of a new law declared applicable to ongoing proceedingswas passed almost unnoticed during its publication.

12. it is since 1996 only that the Court of cassation was conducted to clarify the contours and, to date, more than 30 judgments have been rendered, by all the civil chambers, about or on the basis of article 528-1 with respect to both the appeal that the appeal. You should remember for the most part:

-that time enacted by this section is not a period of lapse, but a limitation on the exercise of the remedies, whose non-observance is estoppel can be invoked in any case and which must be relieved of office by the judge (2nd Civ., May 19, 1998, Bull II, no. 156);

-that the two year period run of the pronouncement of the judgment, no matter the date which part who had appeared had actual knowledge of the judgment. Therefore, the provisions of article 450 of the NCPC may not be invoked to escape at the end of issue estoppel (2nd Civ., March 11, 1998, 2 stops, Bull II, no. 81);

-Foreclosure can not play since the judgment was notified within the period of two years, unimportant that this notification is vitiated by a defect liable to affect the effectiveness (2nd Civ., March 2, 2000, Bull II, no. 38 and several subsequent judgments). Just, in fact, that the beneficiary of the judgment has indicated its intention to make final judgment in the meaning, within the period of two years, this meaning was irregular;

-that the plea of inadmissibility being of public order, a notification of the judgment after the expiration of the period of two years does not reopen an appeal period (SOC., 17 Nov. 1998, Bull V, no. 493; 2nd Civ., October 14, 1999, appeal No. 97 - 22.207).

3. the regularity of the seisin of the Court of appeal

13. as any jurisdiction, the Court of appeal is required to verify, there is office place, the regularity of its referral (including: 2nd Civ., April 5, 2001, Bull II, no. 71), which must be made in the manner provided by law.

Since ten years, numerous decisions of the Court of cassation set out with constancy that non-observance of the shape imposed by the texts does not obey the regime of nullity proceedings, but is constituent of estoppel. The inadmissibility must be pronounced without requiring the party concerned to make the request, and without that there is place to look for the existence of a grievance caused by the irregularity. (9)

14 fall in this topic appeals under a form other than that which the law has laid down. (10)

Inter alia, in the State of the texts, several judgments reported invalid appeal by fax (2nd Civ., June 8, 1995, Bull II, no. 180; 3rd Civ., June 19, 1995, Bull III, no. 148; Soc., 18 November 1998, Bull V, no. 505). (11) 15. It's the same when the deed formalizing the use is not motivated while the law provided this motivation (assignment for the call of incidents of seized real estate; contradicts of jurisdiction (art. 82 of the NCPC; 2nd Civ., November 23, 1994, Bull II, no. 238. The inadequate statement of reasons constitutes a plea of inadmissibility of public order which must be relieved of office, except regularisation before the expiry of the period: 2nd Civ., June 24, 1998, Bull II, no. 209).

16. Although this point has not given rise to recent decisions, remember that such irregularities must be equated the lapse of the declaration of resulting appeal: A / in the usual procedure, the absence of registration to the role given to the registry within two months of the declaration (art. 905 of the NCPC); B / in the procedure to fixed day of absence of remission in the registry before the date fixed for the hearing of the copy of the summons issued to the defendant (article 902 of the CPF).

In these two cases, it is up to the Court of appeal, held to check ex officio the regularity of its referral, to see the sunset, then even the competent magistrate would have not ascertained it or would have rejected a request from sunset (cf. for the purposes of article 922 of the NCPC, 2nd Civ., May 16, 1990, Bull II, no. 96).

17 two remarks to close this topic:

Court of cassation recalled at regular intervals to certain courts of appeal that they exceed their powers when, having declared the appeal inadmissible, they decide on the merits of the judgment under appeal, such a defect found by the Assembly plenary (15 May 1992, Bull A.P., no. 6) serious enough that she delivers a reversal on a way relieved of office. (12)

* all estoppel purposes mentioned above do not exempt the appellate judges to respect the principle of contradiction, the obligation to invite the parties to submit their comments to the judge who is ex officio a way to right, whether or not public order (joint c., July 10, 1981, Bull mixed c., no. 6).

II - NOTICE OF APPEAL

Should be reported the following:

1 / the indication in the notice of appeal of the body representing the legal person:

18. - the plenary Assembly of the Court of cassation (July 7, 2000, Bull A.P., no. 5) found that in the procedure of appeal without compulsory representation, such a reference is not required. Unlike section 901 of the NCPC, article 933 of the same Code the does not;

-While the whole of the civil chambers of the Court of cassation traditionally covered in default, in the notice of appeal subject to the rules of the procedure with compulsory representation (art. 901 NCPC), the designation of the body representative of the appellant corporation, a defect in form requiring the rationale of a grievance, a judgment of the commercial Chamber of 3 June 1998 (Bull IV(, no. 174) had departed from this line by identifying a substantive defect in this irregularity. This decision aroused negative divergences within the courts of appeal and sometimes even within the Chambers of the Court of appeal.

After the 2nd Civil Chamber recalled the dominant doctrine in three judgments of the same date (July 12, 2001, Bull II, no. 139), a Chamber mixed (22 February 2002, Bull mixed c., no. 1) held, in the same sense as "the non-designation of the body legally representing a corporation in an act of procedure, when this reference is provided on pain of nullityis only a defect in form. Was concerned the regularity of an assignment, but the rule laid down by the joint Chamber, in its general character, covers the statement of appeal.

2 / the reference to an incorrect address in the notice of appeal and the writings of

Parties:

19. the 2nd Civil Chamber had long considered more consistently (April 20, 1988, Bull. II, no. 93; 15 April 1991, Bull II, no. 125 and several subsequent stops) that the only purpose of the entries prescribed by section 901 of the NCPC is "to ensure the identification of the appellant and not the execution of the decision under appeal." This case was not followed by appellate courts. (13)

By two judgments of 14 June 2001 (Bull II, no. 117 and 118), the 2nd House, joining this line of jurisprudence of the judges, returned to his doctrine: the absence or inaccuracy of the mention of home in the notice of appeal may also be suitable to grievance if it is justified that undermines the enforcement of the judgment referred to the Court of appeal. By concealing its address, the appellant may make difficult the enforcement of a judgment of provisional enforcement and absence of enforceable judgement, the implementation of protective measures to guard against risk of insolvency organization. Procedural fairness is concerned, as compliance with the requirements of fair trial. It remains that extreme rigour should nevertheless be avoided (see), and that the reserve of the legitimate ground could lead to improvements. (14)

20. This turnaround is even less illogical that we know that the concealment of the home in the writings of the parties can make them inadmissible (cf. art. 59, 815-961 of the CPF). By judgments of 31 May 2001 (pp. 99 - 21.436) and 8 November 2001 (p. 00 - 14.440), the 2nd Civil Chamber approved appellate courts have declared the conclusions of inadmissible callers and then confirmed the judgments to call not supported, after having noted that these appellants did not mention their exact home in their conclusions and had not indicatedDespite a notice, prior to the closing of the proceedings, the Court of appeal did not have to remember the existence of a grievance.

21. recalls that above call a brief reflection on the notion of grievance within the meaning of article 114 of the NCPC and the control exerted on this point the Court of cassation.

The Supreme Court abandoned in principle the existence of grievance, of prejudice, to the sovereign power of the judges. The cases who refuse to control this condition, about including the irregularities that can affect acts of meaning, are legion.

However the reading of the aforementioned judgments on the particulars of the statement of appeal shows that the Court of cassation has channelled the sovereign discretion of judges. In a judgment of 12 July 2001 (2nd Civ. Bull II, no. 138), it has censored an appellate court for having said that the omission in the notice of appeal of the body representative of the legal person constituted a defect causing a prejudice to the opposing party by not allowing him to proceed with the verification of the authorization of the representative having noted appeal. Such motivation was only a truism and could not have scope, because it is equivalent to say that there is a grievance because there is a failure, and that any defect of form necessarily creates a grievance. Even the joint Chamber, February 22, 2002, did not admit that the resulting grievance of a defect affecting a subpoena to justice can reside in the harm caused by the action itself; the grievance cannot find its source in a procedural difficulty related to the alleged defect.

With regard to the particulars of the notice of appeal, can be considered in the State, that grievances from their failure lies in the impossibility of identifying the appellant or regarding the home, in the difficulties, it is up to the judges of appeal enjoy sovereign existence, tried to enforce the judgment call or to take backup it can justify measures.

3. the formalization of the delayed call

22. the judgements which decide not, even in part, main, cannot be, under sections 544 and 545 of the NCPC, stricken appeal regardless of the judgments on the merits. What is "regardless"? Using the solution that the Court of cassation applies to appeals, a judgment (2nd Civ., April 5, 2001, Bull II, no. 70) decided that the two appeals should be formed either by the same Act, two acts of the same day. The solution may seem formalistic, as one could conceive that an appeal from interlocutory judgment can still be formed until the time for appeal of appeal of the judgment having disposed of the main is not expired. However, it is realistic, without be prohibited by legislation. Firstly, if the judgment on the merits has not been notified, the appeal period can run indefinitely. On the other hand, it is important to avoid difficulties and risks of errors, as the two appeals, that the Court of appeal must consider together, be registered by the registry at the same time.

III - THE STATUS

1. article 915 of the NCPC

23. the definition of the regime of article 915 of the NCPC (established by Decree No. 89-511 dated July 20, 1989) (15) was, between 1993 and 1998, took a significant place in the hearings and the reflections of the 2nd Civil Chamber. Today, more than 70 judgments concerning this provision, which adds a notice issued on 24 February 1995 by the Court of cassation the procedure of referral for opinion, have been made. After this time of excitement, the appeals are much rarer, probably both because the appellants meet the text on the one hand, and because appellate courts are aware of and apply the case law of the Court of cassation on the other hand.

24. a complete recall of this case law, already a bit old, does not come within this note, except to point out two recent judgments:

* When a case was removed from the role, fault for the appellant to have concluded within four months of the appeal, only interrupt diligence of expiry can be, on the part of the appellant, that the filing of its conclusions with restoration of the case to the role (2nd Civ., may 3, 2001, Bull II, no. 83);

* When, after radiation, the findings of remission to the role are filed by the appellant and the respondent on the same day without make it possible to determine the party that has completed first deposit, uncertainty benefits the appellant whose conclusions are therefore admissible (3rd Civ., December 19, 2001, after notice given by the 2nd House 3rd House).

25. article 915 of the NCPC was designed by the Chancellery to combat the dilatory appeals, while avoiding sanction radical, desired at the time by some who would have consisted in calling lapsed fault for the appellant to have concluded within a legal time limit. It resulted in a useful device (16), but complex and source of a good number of uncertainties and question marks. Despite the efforts made by the Court of cassation to give coherent answers, it is hard to abandon the idea that we are finally in the presence of an ultra-sophisticated and formalistic system, enough away from clarity which must preside over the procedural law.

A question may also arise in the future where it would be decided to delete the suspensive effect of the appeal because the penalty provided for by article 915 would disappear.(17)

26. to conclude with article 915, it should be noted that, without saying so expressly, the 2nd Civil Chamber drew the consequence found in appellant somehow under injunction legal perform the procedure, and that it is to issue in its conclusions all claims and all means it may have to submit to the Court of appealwithout cutting and split them. (18) it is thus, without wishing to deflower the presentation by Professor Julien, it was held (2nd Civ., June 11, 1997, no. 735 D, Procedures oct. 1997 p.6, and December 9, 1997, Bull II, no. 302), that the appellant that, within four months of his appeal (rule would be identical if the appellant concluded after four months) found that the annulment of the judgment of first instance for one reason other than the irregularity of the document instituting proceedings, - hypothesis in which the devolutive effect of the appeal plays right by application of article 562 of the NCPC-, does not have to wait to receive an injunction to conclude on the bottom. (19)

2. the rights of the defence and the conclusions and productions "last hour"

27. a gap between intellectual and custom pre-appeal as it was originally designed, and implementation status as it is practiced in the facts. The note had been made during the workshop's solicitors, in September 2000 to Reims, there are almost as many updates in state appellate courts, and that, often, pre-appeal works "backwards", insofar as the date of closing is fixed even before we know to when the case will be ready for trial. If this deviation from the cap that had been initially set is due to the lack of resources of the courts, it has ceased to create difficulties. They have exposed and synthesized in an excellent study of Mr. Laurent Jacques, published in the 1995 report of the Court of cassation, to which reference is made.

28. emphasis must be placed on the irritating problem posed by deposit of conclusions or parts, shortly before the close (a few days before, two days before, the day before, or even the same day the fence), clean to the opposing party unable to replicate, conclusions often called for this reason, but wrongly, "late" (20).

The means of cassation who reproach the appellate courts to have rejected discussions such conclusions or parts, either in contrast to have accepted, have always existed. But they have recently proliferated. However the case law of the Court of cassation was not totally uniform. The 2nd Civil Chamber, in plenary sitting of Chamber (4 stops of 11 January 2001, presented in the newsletter of the Court of 15 March 2001, p. 35) tried to make the point. The solutions chosen have made that clarify the earlier right. One can consider that they are today all chambers of the Court. (21)

It follows from these solutions that the judge may reject ex officio of the discussion conclusions or parts in question. (22) but as it is not required to verify Office admissibility with regard to the principle of contradiction, it cannot be criticised by an appeal to the appellate judges to take account of findings or parts of last hour, once their admissibility was not challenged before them, this challenge can take the form of a request postponement or revocation of the order for termination, or the filing of findings of inadmissibility. (23) and, what is essential, in all cases, they act ex officio or at the request of the parties, the judges of appeal must specify the particular circumstances which have prevented compliance with the principle of contradiction. They cannot overturn the findings on the sole ground that they are "late" (2nd Civ.) June 7, 2001, Bull II, no. 115 (24).

Here a "conciliation" (in appearance only) between two antagonistic approaches, that gives pre-eminence to the office of judge in which between the police of the contradiction, and one that argues that it is for the parties to say if their defence rights are threatened or infringed. All reconciliations are not necessarily good, but they may be imposed by the necessities. However, it is not certain that the drafters of the NCPC would have been happy to know that many of the conclusions are declared inadmissible although served and filed prior to the closing.

3. the disclosure of materials

29. There are noted on this point two judgments in plenary Chamber on 20 December 2001 (2nd Civ., Bull II, no. 203 and 204) (25).

In the judgments which had been struck to appeal, the courts of appeal had raised ex officio, no one contesting regularity of communications, the plea of the lack of communication of certain documents to reject them debates. The 2nd Civil Chamber has broken these cases holding that the documents referred to in the Scriptures of a part and which gave rise to no dispute before the judges, are considered, unless evidence to the contrary, have been regularly produced and submitted to free discussion portions.

It is the reminder of a nuanced solution, adopted by all the Chambers of the Court of cassation, and which was already made in a judgment of 13 June 1985 (2nd Civ., Bull II, no. 121). When the evidence of a communication is not specifically a reference to the contested decision, the Court of cassation established a presumption of regularity whenever the contentious piece is mentioned in a list of communication or that it has been referred to in the conclusions. In these two cases, indeed, the opposing party had knowledge of the document, and if it has not been conveyed, she had the faculty to provoke an incident of communication; If it is is failed can be estimated reasonably that the communication has been effective.

Enable the judges, on behalf of the obligation they have noted violations of the principle of contradiction, to exclude ex officio of the debates in the absence of any dispute as to the regularity of the communications, the pieces that they consider not regularly reported, would be tantamount to calling into question the foundations of the established presumption that puts on the same level the communication slip and the visa of the parts in the conclusions to infer that the attention of the litigant has been drawn to the existence of evidence and on the intention of his opponent to use. Moreover, communication is a fact to which the judge is more often foreign, and there may be its share some imprudence to decide ex officio such piece has not been communicated.

30. a note: these cases indirectly give importance to the summary annexed to the conclusions of appeal pursuant to paragraph 1 of article 954 of the NCPC (Decree of 28 December 1998). Therefore that this slip shows the parts which it is reported in the conclusions, it seems to be enough that a piece is referred to in this schedule for the Court of appeal, except protest, should consider that the communication was made.

IV - THE APPLICATION OF THE DECREE OF 28 DECEMBER 1998. "RECENT ENTRIES"

31. the implementation of the Decree of 28 December 1998 gave rise to date little intervention of the Court of cassation, and these interventions have all concerned the regime of the "latest writings".

Attention is particularly drawn to the more recent judgment (2nd Civ., April 30, 2002, Bull II, no. 82), which sets out that the provisions of the second subparagraph of article 954 of the NCPC (26) do not apply when the procedure is oral. Thus the Court of cassation rejected the argument of text based on the placement of article 954 within "common provisions" to appeal procedures with and without compulsory representation, for the benefit of the specificity of the procedure oral, widely inconsistent with this new regime of the finding of appeal. It is recalled that the report submitted by Mr. first president Coulon indicated that this scheme involved the representation of parties by professional agents.

32. previously, by notice of July 10, 2000, extensively commented, the Court of cassation was endeavoured to delineate the area of the "latest writings" covered by the text (27), and a few stops that followed were registered in the line of this notice. For the record:

* the conclusions that merely to invoke the inadmissibility of the Scriptures adverse signfiees in circumstances of time that ignore the principle of contradiction (see supra No. 28) are not subject to the provisions of the second subparagraph of article 954 (2nd Civ., may 3, 2001, Bull II, no. 87);

* joinder not creating a single procedure, the appellant that removal of the latest findings in support of its appeal of the second decision, is not deemed to have abandoned the claims and the means he had previously presented in support of its appeal of the first decision (2nd Civ., May 17, 2001, Bull II, no. 98);

* It is not possible by reference to the previous Scriptures (Civ 2, 10 May 2001, Bull II, no. 95; 28 June 2001 appeal 00 - 10.124).

V DEVOLUTIF OF APPEAL (28) EFFECT

This topic is mentioned for the record, because it will be the subject of communications Me Jean-Philippe Duhamel and Dean Pierre Julien.

Court of cassation States generally that the writings of the parties delimit the scope of the devolutive effect. But what exactly is? The parties have at their disposal the Faculty of limiting what the notice of appeal referred to the Court of appeal? In this regard, when reading make the 2nd paragraph of article 954 of the NCPC? What is the scope of the finding of confirmation made by the respondent? These questions will be considered by Me Duhamel.

* For two years, the case law of the Court of cassation has changed significantly on the question of calling for the annulment of the judgment. To the point on this development and difficulties which may remain outstanding will be the subject addressed by the Dean Pierre Julien.

1. the nullity appeal, which opens the door to the call when the law prohibits this recourse pathway or authorized in a deferred manner, are outside of the right of collective proceedings. It assumes that the first judges have committed an excess of power or, according to the commercial Chamber, have disregarded a "fundamental principle of procedure", which doesn't seem to make unanimity within the Chambers of the Court, 1st Civil Chamber particularly considered (April 28, 1998, Bull I, no. 151) that the breach of the principle of contradiction is not ultra vires.

In the language of the Court of cassation, this "call void" is distinguished from "the cancellation call" by which a legally open call seeks annulment of judgment (cf. article 562 of the CPF).

The same opportunity to take firm action applies to the appeal in cassation, always open in the event of excess of power. In a judgment not published (February 5, 2002, appeal 99 - 13.165), the commercial Chamber has even used the expression of "appeal-void".

2. it is at least the position followed by the 2nd Civil Chamber which breaks ex officio and without reference, after a warning given to lawyers on the boards or the parties pursuant to article 1015 of the NCPC, the cases that are referred to him, when she sees that the track of the appeal was not open.

3. the Court of appeal is required to raise ex officio the inadmissibility of the appeal for delay if it was by the production of evidence establishing the starting point of the time limit for appeal, put able to confirm his dismissal (2nd Civ., October 24, 1979, Bull II, no. 249).

4. this concept of "substantive means", despite the consistent content given to him by the 2nd Civil Chamber, remains complex, is not always well understood by practitioners, and is a source of many disputes. When a useful reform of repossession?

5 Professor Perrot has issued a positive opinion to the position of the 1st Civil Chamber (Procedures, Feb. 2000, no. 31).

6. that case-law must be extended by the legislature so that the time limits for appeal remain indefinitely open. Taking up a suggestion by the Dean of Perdriau and Professor Perrot, the preliminary draft decree recently submitted to the consultation by the Chancellery provides that where the party will be informed by the notification of the decision of inadmissibility, that the appeal that she had exercised on the basis of erroneous information was inadmissible, the exact appeal period will start from this Act of notification.

7. in the same vein: Douai, 25 October 2001, d. 2002, p. 367, notes Ms. Bottiau, who admitted the admissibility of the notice of appeal made by fax on the eve of the expiry of the time limit, since the day after the Registrar, responsible to authenticate acts, had indicated on the copy provided by the solicitor that the statement had been received the previous day outside opening hours of the registry established by the first President. The implementation in the courts of appeal of timestamps would eliminate these difficulties and these contortions.

8 "art. 528 - 1 if the judgment has not been notified within two years of its pronouncement, the party who appeared is more entitled to recourse main title after the expiry of the time limit."

This provision is applicable only to judgments which decide the main and those who, acting on a procedure, an end of estoppel or any other incident exception, terminate the instance."

This text is not applicable to arbitral awards (2nd Civ., October 18, 2001, Bull II, no. 156)

9. it is immaterial in this regard that the unintended mode used to enter the jurisdiction may seem more protective of the rights of the other party. It is inadmissible is a claim in the Court by assignment while the texts governing the proceedings in question have the Court by declaration at the registry (2nd Civ., July 12, 2001, Bull II, no. 141, about article R 226-22 of the Code rural).

10. for the sake of unification, the preliminary draft of the Chancery decree modifies article 932 of the NCPC. In the procedure without mandatory representation, calling themselves would no longer by declaration at the registry of the Court which gave the judgment, but at the registry of the Court of appeal.

11. other examples: in the call with mandatory representation, the call was formed by a letter drafted by a solicitor and sent to the clerk in Chief of the Court of appeal instead of the delivery declaration at the registry of the Court (2nd Civ., 10 February 2000, no. 160 D); an appeal from a judgment ruling on an incident of repossession was made by declaration so that section 732 of the old Code of civil procedure requires that it be made by reasoned assignment (2nd Civ., May 22, 1996, Bull II, no. 107); an appeal by an agent destitute power special (2nd Civ.,) April 5, 2001, Bull II, no. 71.

12 and recently: 2nd Civ., December 9, 1997, Bull II, no. 306; Soc., March 13, 2001, Bull V, no. 92. Note however a difficult judgment to interpret the 1st Chamber civil (18 March 1997, Bull I, no. 98) that it "is not prohibited in the Court of appeal to host a plea of inadmissibility from the prescription, then, albeit subsidiarily, to decide on substantive issues to the rejection of the application." Cassations which can intervene to censor this excess of power fall under the cassation without reference, if at least the excess of power is the only basis for the cassation.

13 cf. in particular Paris, 8th c. B, 2 March 2000, Bull solicitors de Paris, p. 137; Versailles, November 23, 2001, proceedings 2002, no. 68.

14 see the proposals made by D. Cholet, Dalloz 2001, jurisp. p. 156

15. This provision, which concerns only the call with mandatory representation, requires the appellant to conclude within four months of the appeal under penalty of removal of the case from the role that deprives the appeal of its suspensive effect. The case is reinstated on justification for the filing of the findings of the calling, or on the initiative of the respondent who may request that it be closed and returned to the hearing to be judged in the light of the conclusions of trial, appeal remaining deprived of any suspensory effect.

16. Although derogating from the principle laid down by the drafters of the new Code, which excluded the legal time limits in civil cases.

17. it should then find another sanction. The part that uses must be able to indicate quickly why it did.

18. as a result of the terms of article 76 of the NCPC, an exception to this approach could relate to the situation of the appellant which, not comparing in the first instance, appeal raises a plea of incompetence.

19. by its generality, the expected reflecting this doctrine, "but expected that when the appeal is on the annulment of the judgment and not on that of the document instituting proceedings, the Court of appeal, before the whole issue by calling devolutive effect, is required to decide on the bottom regardless of its decision on invalidity, without that the appellant was to receive an injunction to conclude at the bottom" raises a difficulty. In the absence of findings of the appellant on the merits, what can indeed the Court of appeal, if it cancels the judgment?

20. they are perhaps not filed in the "time" of articles 15 and 135 of NCPC, but prior to the closing, they are not late over it.

21 see, about three judgments on 27 November 2001 by the commercial Chamber, "The writings of last hour with regard to the Court of cassation", by A. Perdriau, JCP 2002, no. 18, p. 829.

22. without being required to cause an adversarial on this point. The contrary case law of 1985 years was dropped in 1991. Recently: Com 27 nov. 2001, no. 1942 (d), cited above in footnote 21.

23. it must nevertheless remembered a judgment of the 2nd Civil Chamber of 31 January 1996 (Bull II, no. 29, solution resumed on 10 February 2000, p. 98 - 15.828). It concerns the findings involving a cross-appeal. The Court of cassation considered that once the cross-appeal can be formed in any State of cause (art. 550 of the NCPC), these findings may be lodged until the close. As a result, it belongs to the opposing party, if it intends to respond, without being able merely to invoke their inadmissibility to request postponement or revocation of the closing, only processes that allow in this case compliance with the contradiction.

24. the judges must actually ask two questions: 1 / these findings called them a response? 2 / if so, the opposing party had time to respond?

25. the following discussion is almost a reproduction of a comment published in the report for 2001 of the Court of cassation.

26. the parties must resume, in their recent writings, claims and means previously submitted or relied upon in their earlier findings. "Otherwise, they shall be deemed having abandoned and the Court only on the latest filed conclusions."

27. What are "those who, before the closing of the statement, determine the subject of the dispute or raise an incident of nature to terminate the instance."

28. the application of articles 563 in 567 and the NCPC article 565 (admissibility of claims that tend to the same purpose, even on a different legal basis, than those that had been submitted to the trial judge) in particular, and evocation (article 568 of the NCPC) did not, it seems, led recently to stop significant-

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Section 125

Amended by Decree No. 2004-836 of August 20, 2004 - art. 3 JORF August 22, 2004 effective January 1, 2005

The purposes of estoppel must be relieved of office when they have a character of public order, especially where they result from non-observance of time limits in which must be carried inland use or the absence of redress open.

The judge may raise ex officio the plea of inadmissibility from the lack of interest of the defect in quality or res judicata.

Civil appeal - Decisions

9 civil appeals - Decisions - Decision of before right - say device cutting a part of the main - Decision allocating a provision - Exclusion

(Mixed room, 25 October 2004, Bull No. 3;) BICC No. 611, p. 9, report of Mr. Loriferne and Mr. Viricelle opinion)

Under the terms of article 544 of the new Code of civil procedure judgements that settle in their device a part of the main and order a measure of inquiry or a provisional measure can be immediately stricken appeal as judgments that settle all the main. Furthermore, article 545 of the same exact Code as other judgments (that those covered by the preceding article) cannot be hit appeal regardless of the judgments on the merits, in the cases specified by law.

Principle of the immediate appeal is inadmissible directed against a judgment which merely, in his device, order expertise cannot be circumvented on special authorization of the first president of the Court of appeal, in accordance with article 272 of the new Code of civil procedure, whether there is justification for serious grounds and legitimate.

But the call is immediately admissible against a judgment which, in its operative part, order a measure of inquiry and allocates a provision?

This was the question put to the joint Chamber, due to the differing solutions given by the various chambers of the Court of cassation, judgments sometimes holding that such a judgment does not decide in its operative part of the main, sometimes ordering him to pay a supply, a tribunal necessarily accepts the principle of the debt and slice as a part of the main.

The judgment of the mixed Chamber decides that a judgment which is limited in its device to order the payment of an allowance, and expertise does not decide a part of the main, which it follows that the Court of appeal must declare inadmissible Office calling before it against such a judgment.

This solution is first of all in harmony with the judgment plenary Assembly on 5 December 1997, concerning the conditions of admissibility of the appeal, Visa articles 606, 607 and 608 of the new Code of procedure civil which terms are similar to those of articles 544 and 545 of the same code.

It is then consistent with the provisions of articles 480 and 482 of the new code of civil procedure concerning the authority of res judicata which writing also presents a great similarity with the text of articles above 544 and 545. The authority of res judicata attaches to the only judgment device and case law now seems set to stick to the particulars contained in the device and refuse to recognize this authority to the reasons for the decision, even if are qualified decision-making patterns, which is probably the only way to avoid the exegeses of judicial decisions, legal uncertainty sources, and to propose an objective criterionclear, accurate, which is a formal criterion.

The joint Chamber takes clear advantage on the temporary nature of the provision allocated, which is not an advance or a deposit, but a provisional measure within the meaning of article 544 of the new Code of civil procedure, which is also enforceable law provisionally in accordance with article 514 of the same Code (CIV., 2nd, January 13, 2000)(, Bull No. 5 p 4).

Ultimately judgment who merely in its operative order expertise and establish a provision does not have res judicata authority, does not decide a part of the main, otherwise not the judge, does not end at the instance, and may therefore be subject to an immediate appeal.

------------------

Code of civil procedure

•Supplied Ier: provisions common to all the

Juridictions◦titre VII: judicial administration of the

evidence.◾Subtitle Ier: Parts.◾Chapter I: The disclosure of materials between

the parties.

Article 135

In force since 1 January 1976

The judge may exclude the debate parts which were not communicated in a timely manner.

In the Factsheets

Procedure... Civil Court... Remedies: call...

Cases making reference to article 135 of the Code of civil procedure

1 ° labour - procedure - parts - communication - communication in a timely manner - good time - sovereign appreciation...

1 ° the judges enjoy sovereign if parts were communicated in a timely manner within the meaning of articles 15 and 135 of the new code of civil procedure...

Social Chamber, November 29, 2006

Powers of judges - rated sovereign - civil procedure - effectiveness of the deposit paid conclusions timely debate...

Legally justified its decision to dismiss the appellant to its request to release parts served by the respondent three days before the closing order the Court of appeal that sovereign notes that these conclusions and parts have been filed in a timely manner within the meaning of articles 15 and 135 of the new code of civil procedure and conclusions...

Room calendar 2.22 March 2006

Civil procedure - parts - communication - communication in a timely manner - good time - sovereign appreciation...

It cannot be complains that a Court of appeal have ruled out debates the parts communicated by a party three days before the order for termination as soon as a result of its sovereign findings that parts were not communicated in a timely manner within the meaning of articles 15 and 135 of the new code of civil procedure...

mixed Chamber, February 3, 2006

Powers of judges - discretion - field of application - oral - communication of documents the day of the hearing-...

Having noted that a party was, in oral proceedings, after a reference to disclosure, release a hundred pieces, the day of the hearing, so that his opponent had been able to become acquainted, Court, that discretion enjoyed the opportunity of a new reference, held exactly that these parts should be ruled out discussions...

Room calendar 2.1 February 2006

Civil procedure - rights of the defence - principle of contradiction - violation - conclusions and parts provided by the parties...

The judge may exclude debates the conclusions and parts provided by parties without specifying the particular circumstances that prevented the principle of contradiction or characterize behaviour on their part contrary to the loyalty of the debates. Therefore, private legal basis decision the trial judge which, to avoid debates parts and submissions filed by a party, merely raise it...

room civil 2.11 January 2006