French Judicial System

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I.

Introduction
o Stems from Roman Law
o French Civil Code in 1804 under Napoleon 1.
o Judiciary is independent from the executive and legislature.
o Two major branches
 I. Ordinary Courts. (Criminal and Civil litigation)
 ii. Administrative Courts (which supervise the government and handle
complaints)
o Four courts of last resort
 I. Court of Cassation (Cour de cassation)
 ii. State Council (Counseil d’Etat)
 iii. Constitutional Council (Conseil Constitutionnel)
 iv. Jurisdictional Disputes Tribunal (Tribunal des conflicts)
II. Features
o 1. System of Civil Law
 Unlike Common Law system of Britain and Pakistan, France has a system of Civil
Law (written codified law).
 Common Law has evolved historically through consensus and precedents.
 Civil Law was drafted during Napoleon’s times in 1804.
 Types of law codes in France
 I. Civil Procedure Code
 ii. Criminal Procedure Code
 iii. Penal Code
 iv. Civil Code
 v. Commercial Code
o 2. No Separate Courts for Civil and Criminal cases
 A court can hear both cases.
 Britain and Pakistan have separate civil and criminal courts.
o 3. Principle of Collegiality
 Minimum of three judges hear the case.
 One judge, and not a number of judges can be corrupted.
 Britain does not have this system.
o 4. Independence of Judiciary
 Judges work under the Minister of the Judicial Department
 Higher Council of Magistracy has strengthened the judiciary
 Judges are irremovable except the charges of gross misconduct on the
recommendation of Higher Council of Judiciary (Article 64).
o 5. Absence of Habeas Corpus
 Article 65 briefly provides not to detain any person arbitrarily.
 However, there is no existence of Writ of Habeas Corpus in Constitution.
 Britain has established it in its legal system
 In Pakistan, it is governed by Section 491 Code of Criminal Procedure (CrPC)
1898.


o 6. Distinction between Ordinary and Administrative Courts
 Ordinary laws and ordinary courts for ordinary citizens.
 Administrative officials come under the jurisdiction of administrative law and
administrative courts.
 Pakistan, India and Britain do not have separate laws and separate courts.
o 7. Judicial Review with Constitutional Council
 Constitutional Council, a semi-executive and semi-judicial body, has the power
to strike down the parliamentary legislation or executive laws – Judicial Review
 Judicial Review rests with ordinary courts in US. Similarly, in Pakistan and India,
rests with Supreme Court.
 British are obsessed with parliamentary supremacy, hence no Judicial Review
for primary legislation.

Droit Administratiff (System of Administrative law)

I. Introduction
o Administrative law
o Administrative agencies
o Government agencies are bound to follow Administrative law
o Ad. Law is a type of Public law
II. Concept of Administrative Law
o “Administrative law is the sum total of the principles according to which the activity of
the services, other than judicial, concerned with the execution of law is concerned.”
(Barthelemy)
o Laws relating to Public Administration.
o Related to the organization, finance and responsibility of all public authorities.
o Law of official powers or the law which determines the discretion permitted to
administrative officers and agencies.
 Encyclopedia of Social Sciences
III. A.V. Dicey’s Opinion
o Three features
 I. The rights of the state are determined by a special body of laws not applicable
to ordinary citizens.
 ii. Administrative courts do not have judges but state officials who try state
officials under administrative law.
 iii. Special protection is given to officials for acts performed in their official
capacities.
IV. Administrative Courts
o 1. Administrative Tribunal Court
 Court of first instance.
 Jurisdiction in any dispute concerning government.
 Also responsible for municipal matters and cantonal elections.
o 2. Administrative Appeal Court
 Ruling of Administrative Tribunal Courts are appealed.
 Created in 1987.
 To reduce the workload of Council d’Etat
o 3. Conseil d’Etat or State Council
 Supreme court of the administrative tier
 An active government advisor
V. Sources of Administrative law
o 1. Written Constitutional Norms
 Declaration of Rights of Man and of the Citizen of 1789.
 Fundamental Principles recognized by the Statutes.
o 2. Unwritten Constitutional Norms
 Judges fill the constitutional gaps.
o 3. The Acts
 Laws made by legislature are binding on the administrative authorities.
 Laws include Constitutional Law, Organic Law, Ordinary Law and Finance Law
etc.
o 4. The Regulation
 Prime Minister (Article 21)
 President of the Republic (Article 13)

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