School of Law – LLB. II – Academic Year 2018 - 2019

UR & NPC - Huye & MusanzeCampus

Civil, Commercial, Labour& Administrative

Procedure (10 cr .)Syllabus

By Louis GATETE

2

Description of the courseØ The Civil, Commercial, Labour and Administrative Procedure (CCLAP) is a course

which initiates the student with the mode of conducting legal proceedings before the

Rwandan courts.

All legal fields are involved, except international and criminal laws which are gov-erned by specific procedure laws. The course is divided into seven (7) broad

topics:

The introduction to CCLAP;

The judicial action;

The lawsuit;

The judgement;

The grounds of appeal (or remedies);

The court expenses;

The enforcement of judgements.

The course includes teaching, practical and outwork loads. As for class meetings, we

will have a total of around 15, an average of 2 meetings per topic.

A lecturer will cover topics 1 to 4 while another will deal with topics 5 to 7.

Readings will be required on average for each meeting. One expects that students read

documents allocated for each meeting before this one takes place, and should be

prepared to discuss about it in class.

Objectives of the courseØ To make a classification of judicial actions

To allow students to distinguish the various incidents from the lawsuit

To interpret a court ruling and solve any procedural problem raising from it

To propose legal assistance in procedure law to litigants

To assess a court ruling and justify one’s opinion

Methodology of teaching & Methods of evaluationØ Lecture based on practical cases presentation

Discussion of the subject by students

3

Mainly exercises posing problems to be solved by students.

3 ways of evaluation:

In-class Assignments: 25%

Collaborative Assignments: 25%

Exam: 50%

Necessary readings

a. Books

1. Williams J. CRAIG, How to Get Sued: An Instructional Guide, Kaplan Trade, 2008,

254 pages, (ISBN: 978-1427797711)

2. William HALTOM, Distorting the Law: Politics, Media, and the litigation Crisis, 2nd

edition, University of Chicago Press, 2004, 332 pages, (ISBN: 978-0226314648)

3. Margaret L. MOSES, The Principles and Practice of International Commercial

Arbitration, 1st edition, Cambridge University Press, 2008, 358 pages, (ISBN: 978-

0521685627)

4. Brian Z. TAMANAHA, Beyond the Formalist-Realist Divide: The Role of Politics in

Judging, Princeton University Press, 2009, 264 pages, (ISBN: 978-0691142807)

5. Legal Review of the Bars, February - June 1999, No 55/56, Paris, Dalloz.

6. Alex STEIN, Foundations of evidence law, Oxford university Press, 2005, 264 pages,

(ISBN: 978-0198257363)

7. Philip HAMBURGER, Law and Judicial Duty, 1st edition, Harvard University Press,

2008, 704 pages, (ISBN: 978-0674031319)

8. American Law Institute and UNIDROIT, Principles and Rules of Transnational Civil

Procedure, Cambridge University Press, 2005, 238 pages, (ISBN: 978-0521855013)

9. Renaud DEHOUSSE, The European Court of justice: Politics of Judicial integration,

Palgrave Macmillan, 1998, 240 pages, (ISBN: 978-0333693179)

10. Daniel ROUX, Jean Pierre SCARANO et Françoise SERRAS-BERAUD, Les

institutions Juridictionnelles en Qcm, 3e édition, Ellipses Marketing, 2008, 157 pages,

(ISBN: 978-2729840914)

11. Patricia VANNIER, Procès et institutions juridictionnelles, Ellipses Marketing,

2008, 143 pages, (ISBN: 978-2729836795)

4

b. Judicial lawsØ Constitution

Law (04/04/2018) determining the organization and functioning of

the Judiciary

Ø Law (02/06/2018) determining jurisdiction of courts

Ø Law (04/04/2018) establishing the Court of Appeal

Ø Law (29/04/2018) relating to the civil, commercial, labour and administrative

procedure

Plan of the course

TITLE I. GENERAL INTRODUCTIONCHAPTER 1. PROCEDURE AND OTHER RELATED MODESCHAPTER 2. JUDGE’S FUNCTIONCHAPTER 3. FUNDAMENTAL CHARACTERS OF THE PROCEDURECHAPTER 4. APPLICATIONS AND PRINCIPAL SOURCES OF THE RULES OF PROCEDURE

TITLE II. JUDICIAL ACTIONCHAPTER 5. NATURE OF THE JUDICIAL ACTIONCHAPTER 6. JUDICIAL ACTION’S REQUIREMENTSCHAPTER 7. VARIOUS FORMS OF JUDICIAL ACTIONCHAPTER 8. CLASSIFICATION OF THE JUDICIAL ACTIONS

TITLE III. THE LAWSUITCHAPTER 9. PROGRESS OF CIVIL COMMERCIAL AND LABOUR LAWSUITSCHAPTER 10. PROGRESS OF ADMINISTRATIVE LAWSUITCHAPTER 11. DEBATES ON DELIBERATIONS

TITLE IV. THE JUDGEMENTCHAPTER 12. ACTS OF THE JUDGECHAPTER 13. DRAFTING AND NOTIFICATION OF THE JUDGEMENT

TITLE V. RECOURSES OF APPEALCHAPTER 14. ORDINARY RECOURSES OF APPEALCHAPTER 15. EXTRAORDINARY RECOURSES OF APPEAL

TITLE VI. COURT EXPENSESCHAPTER 16. COSTSCHAPTER 17. EXPENSES’ EXEMPTIONS

TITLE VII. ENFORCEMENT OF JUDGEMENTSCHAPTER 18. ENFORCEMENT AGAINST INDIVIDUALS AND PRIVATE LEGAL ENTITIESCHAPTER 19. ENFORCEMENT AGAINST THE PUBLIC ENTITIES

5

TITLE I. GENERAL INTRODUCTION

Chapter 1. Procedure and other related modesØ Definition

Procedure law regulates how to act for…

… starting legal proceedings (introduction of lawsuit, referral to the court);

… drawing up (trial),

… contesting (recourses of appeal),

… or giving effect to a court ruling (enforcement)

Ø Theoretical and practical utility

The procedure law does not exist for itself; it helps to apply substantial law

(commercial law, civil law, labour law, administrative law, etc.)

It is an implementation of rights, without which they would remain dead letter

For other modes of conflict management, see course of OFJC.

Chapter 2. Judge’s functionØ The judge’s action

He/she applies precise cases to general and abstract rules earlier established (a

priori) by the lawmaker

He/she acts only after the litigation arises (a posteriori)

He/she doesn’t act automatically (he has to wait that a litigant refers the case to the

court)

He/she acts in accordance with a certain protocol (public debates, principle of

contradictory, accusatory procedure, see course of OCJ)

Duties of the judge

He/she complies with the law

He/she never decides by way of general provisions

In absence of applicable rules, he decides according to jurisprudence, custom,

general principles, the doctrines; see art. 9 CCLAP

He/she decides by way of decision (which has the effectiveness of res judicata)

Organization of justice

The judge is independent…

… with regard to executive and legislative powers,

… of the judicial power,

… and of him/herself.

6

Courts are organized on a hierarchical basis:

They include various degrees

Principle of the single judge vs collegial structure (see course of OCJ)

Chapter 3. Fundamental characters of the procedureØ The procedure is formal, written and oral

Referral to courts (saisine d’une juridiction) is made either by way of written or

oral claim

At the hearing, the parties present their means orally

All the steps are integrated in written acts according to some required forms (to

avoid arbitrariness )

The procedure is imperative and suppletive

Some rules of procedure are of public order (hardly prescribed nullity; for

example: the pronouncement of the judgement in public, art. 132 CCLAP)

Others were arranged in the single interest of the litigants (from where they must

be raised in limine litis, only by them; for example: the cautio judicatum solvi

covered by art. 92 CCLAP)

The procedure is governed by the principles of party disposition (“principe du

dispositive”) and time allowed

The direction of the lawsuit is entrusted to the parties

Only them can make a referral to a court

… and determine the litigation object

The various procedural documents are accomplished in a fixed time

… which is calculated in hours, days, months or years

We distinguish the complete allowed time from the

ordinary allowed time

The procedure is governed by the accusatory and contradictory principles

The judge grants only what was required: da mihi factum, dabo tibi jus i.e.: “give

me the facts; I will give you the right”.

However, he can play an active role; for example: to order by himself an

investigation – see art. 100 EL

… or protective measures (“mesures conservatoires”) – see art. 105 and 236,

5o CCLAP)

7

The judge rules on declarations of all the parties (except in case of judgment by

default)

Chapter 4. Applications and principal sources of the rules ofprocedureØ Applications in time and space

Immediate effect of the procedure rules

Contrary to non-retroactivity, the new rules of procedure, without awaiting,

govern hearings in progress (see for example the transitional provisions of art.

280 CCLAP)

However, the acts posed before remain valid (see same provision in fine)

Rules of procedure apply to all the extent of the country (when no particular rule

was provided for by the lawmaker)

Sources

Constitution of June 4, 2003 (as modified to date)

Legislative sources and other regulations (as modified to date):

The Organic Law (13/06/2012) on Organization, Functioning and Competence

of the Supreme Court;

The Law (16/07/2012) on Civil, Commercial, Labour and Administrative

Procedure;

The Organic Law (10/09/2008) on Organization, Functioning and Competence

of Courts;

The ministerial Order (06/01/2005) fixing Legal Expenses in Civil,

Commercial, Labour and Administrative Cases

International sources (agreements, conventions and international treaties ratified by

Rwanda)

8

TITLE II. JUDICIAL ACTIONØ Definition: it is the submission of a claim to court so that it settles it.

Chapter 5. Nature of the judicial actionØ Right and action

subjective Right is not confused with the action: this is the basis

The action has its own conditions of admissibility:

Quality, capacity and interest

It has a different object → under the terms of the same right of ownership, an

individual can act for recovery of property or damages

v It produces particular effects → it locks up interests, it stops the statute of

limitations (prescription), etc.

Action and claim (demande)

The action is the faculty to act, resulting in a concrete step: the judicial action

It makes it possible to pass from power to the act (which operates referral to a

court)

Chapter 6. Judicial Action’s Requirements (art. 3 al. 1 CCLAP)Ø Interest → No action without interest

ü It must be lawful (légitime) → this interest must be legally protected

… personal and direct → one acts only for oneself; except when:

… a lawyer (mandataire en justice)

To act on behalf of others without mandate. For example: indirect or oblique

action, art. 113 al. 2 N.Contr.Law)

To act on behalf of others without mandate but defending ones own rights. For

example: paulian or revocatory action (action paulienne, art. 113 al. 3

N.Contr.Law)

… born and current → the action is inadmissible if the called upon right is not yet

violated; 2 exceptions:

Action interrogatoire → to take party immediately whereas the law grants a

time; for example: heir – art. 87 LRM

Declaratory action → to ask the judge to come to a conclusion about the legal

nature of a contract between 2 people; for example: lessor or landlord and taker

9

Interest in administrative dispute → it is not appreciated in dispute of annulment

(contrary for disputes of full jurisdiction).

Quality / standing → a person appears in a lawsuit by way of holder of the right:

I.e. him/herself, if not his/her heirs or legal successor

However…

… personal actions are excluded: for example the action in divorce

For the actions of the lawyer (mandataire ad litem), the name of the litigant

can’t be hidden: "nul ne plaide par procureur"

Also, see action oblique (on contrary of action paulienne)

Capacity: it is the rule

The incompetents are :

The minors and the certified person (interdit) are represented in justice

The spendthrifts (prodigues) and the feeble-minded (faibles d’esprit) are

assisted by a curator

The incapacity of the married woman was removed

Chapter 7. Various forms of judicial action

A. The claimØ It is about the action considered on the side of the individual who seizes initially the

judicial lawsuit: the plaintiff

Ø The judicial action is made up of 4 elements:

Subjects or parties: plaintiff – defendant – intervening third person

The object: it is on what the action carries (it is forbidden for the judge to rule

ultra/infra petita)

The cause: it is the base of the legal claim (for example, cohabitation cannot found

a claim for alimony)

Means: evidence (or reason) called upon in support of the claim

The immutability of the claim (Article 6 CCLAP):

this principle means that the 4 elements of the judicial action are fixed in theory

for all the duration of the procedure

New means are distinct from a new claim: indeed, they come to confirm the

existing claims, whereas the new claim is a claim stated for the 1st time before the

same court or a court of 2nd degree and ignored before or by the 1st judge (see art.

154 al. 3 CCLAP)

10

1 o According article 162 of the new law governing contracts (law n 45/2011 of 25/11/2011), “the decree of July,30th 1888 – i.e. CCLIII – shall remain effective for … (statute) of limitations, ...” until further changes.

Exceptions of the immutability of the claim:

The incidental claim (additional claim, counterclaim and intervention)

The new claim at the 1st degree: it is allowed if all the parties authorize it

(Article 6 al. 2 CCLAP) – it is prohibited at appeal except if there is compensa-tion (Article 154 al. 1 CCLAP)

Categories of judicial action:

An introductory claim (or principal claim): it begins a lawsuit

An incidental claim (see above): it is added at a pending lawsuit

Effects of the judicial action…:

… with regard to the judge:

He/she has obligation to rule (Article 9 al. 2 CCLAP)

It’s prohibited for him/her to add or elude anything – see prohibition to rule

ultra/infra petita above (Article 10 and 11 CCLAP)

He/she places him/herself at the time when the judicial action begins

He/she gives up if there is pendency of case (Article 154, 3o OFCJ)

… with regard to the parties:

The statute of limitations – prescription – is stopped (art. 638 CCLIII1)

This claim operates summons – notice to pay (mise en demeure)

v It makes certain personal actions transmissible to the heirs.

B. The defenceØ It is about the action considered on the side of the litigant sued by the plaintiff: this

litigant is the defendant

Ø 2 attitudes can characterize the action: a defensive attitude and a counter-offensive)

1. Basic defenceØ The defendant tackles the plaintiff’s right put forward, by adopting a purely defensive

attitude. For example, he/she affirms that the right never existed, or is extinct.

Basic defence can be called upon at any stage of process before closure of debates.

2. CounterclaimØ The defendant counter-attacks; he/she does not limit him/herself to the simple

rejection of the plaintiff’s claim

11

2 See supra, note 1

For example: the compensation – a claim being used as defense against the principal

action (see art. 168, al. 1 CCLAP)

Counterclaim on counterclaim is not worth

3. Incidents of defenseØ The plaintiff’s claim isn’t directly disputed

These incidents must be called upon in limine litis

Ø They are of 2 kinds: exceptions and “fins de non-recevoir”

a. ExceptionsØ They criticize the lawsuit like having been badly engaged, with regard to:

… the competence of the seized court (exceptions of incompetence – of pendency

of case – of connexity)

… legal technicality/flaw (exception of nullity)

… moment when the claim was committed (dilatory exception)

… and the lawsuit is temporarily halted.

b. Absolute bar to proceedings/Denial of proceedings (“Fins de non-recevoir”)Ø They make the plaintiff fail in his/her case without pleading the cause.

For example: lack of capacity, interest, quality; prescription/statute of limitations

(Article 647 CCLIII2)

Chapter 8. Classification of the judicial actions

A. Classification according to the nature of the rightØ The protected right is a real right (jus in rem), a personal right (jus in personam) or a

mixed right; from where…

… the action is real

ü The claim is made for a real right

2 categories of real action:

the principal real action (for example, the action for recovery of property

which sanctions the ownership right)

… and the additional real action (for example, the action of the secured

creditor – ‘créancier hypothécaire’, sanction of mortgage)

You can’t have much of real actions (limited amount of them)

12

… personal

ü One asks for recognition or sanction of a personal right…

…whatever is the source (contract, quasi-contract, tort).

Personal actions are too numerous because of their sources’ diversity

… or mixed

ü The dispute relates at the same time to a personal and a real right

For example,

… a purchaser can act as creditor of the salesman (and is claiming execution

of the sale contract)

… and as the owner of the object to deliver (the obligation to deliver is perfect

by the only consent)

B Classification based on the object of the rightØ Right called upon is related to either movables, or real estate; from where…

… the action is movable or estate

Ø This classification makes possible to determine the jurisdiction ratione loci of courts:

For movable actions, it is the court where the contract’s execution is carried or

where it was signed.

For estate actions, it is the court of the place where real estate is located.

C Classification based on nature and object of the rightØ The movable personal action

An unpaid or contested debt, object of the action relates to a personal estate

For example, amount of money, movable goods and chattels, etc.

The real personal action

The credit relates to a real estate

This action is very limited in a number

Indeed, it is born primarily from a contract

The quasi contract, offence and quasi delict are excluded in theory

The movable action in rem

It is not very frequent because of the rule "en fait de meuble, possession vaut titre"

(i.e when it comes to movables, possession means ownership-see art. 658 CCLIII3)

3 See supra note 1

13

In theory recovery of property doesn’t work for movables/personal estate

(exception: theft, loss)

The real action in rem

It is, with the first category, the most effective actions

Recall: it is necessary to distinguish…

… possession (de facto situation implying the corpus – see art. 622 CCLIII

– and the animus – see art. 624 CCLIII)

… from detention (corpus without animus)

… and from property (de jure situation implying usus, fructus, and abusus)

The real action in rem is subdivided in:

… claims of ownership (which protect a right in rem: the property and its

dismemberments)

… and possessory actions (which protect estate possession and detention:

lament – ‘complainte’ & denunciation against works – ‘dénonciation de

nouvel oeuvre’ ; action of recovery – ‘réintégrande’)

D. Classification of the actions in administrative disputes (Article 334 to 349 CCLAP)

Dispute of annulment:

The judge can only pronounce the annulment of an administrative act

… in theory, due to an abuse of power

means called upon are primarily de jure

interest to act is intended in a broad way

lawsuit res judicata is absolute

Dispute of full jurisdiction:

The judge comes back to his usual capacities (for example: to condemn a district to

pay an amount of money, etc.)

Application to tax and electoral disputes, administrative liability, contract

litigations

means called upon are de facto and de jure

the lawsuit of res judicata is relative

interest to act must meet conditions required (see supra)

14

TITLE III. THE LAWSUITØ Definition: the lawsuit is a succession of procedural actions, from the judicial action

to the award/judgement, while passing by a whole of acts and information necessary to

put a case in a state to be judged.

The guiding principles were examined at the beginning of the course: immutability of

the litigation, dispositive principle, free contradiction, etc.

The procedural instruments laid down during the lawsuit are diversified and must

respect deadlines.

According to their form, we identify…

… those emanating from judges: award, judgement, ruling

v … those emanating from registrars: record, authentic copy, executory copy

v … those coming from the bailiffs: writ (summons – the 2nd , the last, … to pay

before execution – official report of seizure), etc.

… those emanating from lawyers: requests, submissions, etc.

As for their sanction…

… it can be a question of nullity (one needs an objection; see art.

96 to 102 CCLAP),

… a disciplinary action (for example, against a faulty bailiff)

… or simply a judgment with the expenses of the null act and damages (for

example, against a faulty lawyer)

Quid of deadlines?

As considered previously, the deadline is a legal time granted to carry out a

formality or a procedural action

It can comprise complete days or not (make distinction between dies a quo and

dies ad quem);

Public holidays are not counted.

Chapter 9. Progress of civil, commercial and labour lawsuits

A. Introduction of lawsuit: the instrument initiating proceedings

1. The lawsuit introductory requestØ The court is commonly seized by way of request (Article 20 to 33 CCLAP)

The plaintiff exposes to the registrar the object of his/her request, in theory without

the defendant’s knowledge.

15

The file on the case is then electronically built up (Article 20 & 23 CCLAP) and

the day of pretrial conference fixed (Article 26 CCLAP)

Claims of the plaintiff are communicated to the defendant by way of summons

(Article 34 to 52 CCLAP)

It is a procedural instrument by which the plaintiff invites the defendant to appear

before the registrar.

Essential formalities to fill in are as follows: identification of the parties – object

of the claim – court where the request is carried on – email & telephone numbers)

The summons is …

… electronically addressed to the defendant (see article 39 CCLAP)

… or otherwise sent at his/her domicile/residence

… referred to his/her residence authorities

v … communicated with acknowledged receipt

… sent abroad by post

… or addressed to unknown residence; (for details see art. 43 to 46 CCLAP)

It is necessary to distinguish…

… notice to appear – “signification” (the writ is handed to the addressee)

… from notice to invite – “notification” (the writ is sent electronically or under

legal fold, i.e. by post with acknowledgement of delivery); see art. 28 CCLAP

2. Joint request (Article 195 CCLAP)Ø It is about a request which is worth at the same time pleas or submissions …

… and in which are exposed by mutual agreement (the two parties are petitioning):

… respective claims,

… litigious points/arguments (in fact and legal)

… means called upon

B. Procedural actions of the lawsuit (‘instruction’)

1. Appearance of partiesØ The appearance in justice is done individually or by representative (see art.53 CCLAP)

The debates are in theory contradictory

16

A party can be obliged to appear in person (see art. 60 & 61 CCLAP) and to undergo

any cross-examination apart from his/her opponent.

a. Obligatory personal appearance (Article 60 CCLAP)Ø It is decided, without appeal, by the president of the court

… at any procedural stage and in any matter

It is not anymore possible for parties to commission their representatives (see for

example, the personal appearance of the legally incompetents in accordance with art.

61 CCLAP)

b. Default of the partiesØ When it is the defendant who is failing to appear,

… we distinguish the situation from a single defendant (Article 59 CCLAP):

… it is given notice of the default,

… the plaintiff’s pleas/submissions are then appreciated by the judge before

he/she awards them,

… or the plaintiff can ask for the defendant to be given a 2nd summons –

‘réassignation’.

In the case of a defendant having appeared but doesn’t want any more to come

along to lodge his/her pleas, there is the last summons – ‘sommation’ of 15

complete days (see art. 60 CCLAP).

In the 2 situations (2nd & last summons), the judgement issued after a 2nd

default is considered contradictory (i.e. to have been rendered in presence of

both parties)

… from that of many defendants:

It is given notice of the default of concerned defendants (see art. 54 al. 1

CCLAP),

… but the judge waits to award the plaintiff’s pleas.

He/she summons them for a 2nd time and gives warning: the judgement to

intervene will be considered contradictory (Article 61, al. 2 to 4 CCLAP)

When the failure to appear comes from the plaintiff (see art. 57 CCLAP),

…defendant’s submissions can be examined (see art. 57 al. 1 CCLAP),

…but in most cases, there is dismissal of the case : a defendant’s release, granted

without examination of the substance/essential features of the request.

The proceeding is extinguished.

17

(see

Expenses of the lawsuit are on charge of the failing litigant (see art. 57 al. 2

CCLAP)

Reintroduction of the lawsuit at appeal doesn’t suspend the execution of the

judgement attacked (see art. 58 al. 4 CCLAP)

However, the plaintiff has the right to reintroduce his/her request, provided…

… that the judicial action didn’t become meanwhile time-barred (“préscrite”),

… and that he/she pleads a serious cause appreciated without appeal by the

judge (see art. 58 al. 1 and 3 CCLAP).

Also, he/she is exposed to damages for misuse/abuse of procedure (see art.

107, 2o CCLAP about the defendant counterclaim)

2. PleadingsØ Debates are oral and obligatory:

Hearings are open to the public except in camera (see art. 70 CCLAP)

The judge is in theory single (at all instances/levels except for the appeal

instance/level, if the president decides otherwise – see art. 64, al. 1 and 2 CCLAP)

… and can now be replaced during all the hearings relating to the same case (see

art. 74 CCLAP)

Debates proceed orally (see art. 72 CCLAP): call of the cause – offer toconciliate/mediate - verification if incidents cleared (during the PC) - pleading of the

plaintiff – pleading of the defendant – retort – closure of debates & notificationon day & time of verdict.

… and are noted in an official report of hearing:

The registrar draws up a hearing form which includes all the pleading elements

At the end of the hearing, the contents are read out for litigants (see art. 76

CCLAP) and the latter sign the official report.

Maintenance of law and order in hearing:

violation of hearing laws (see art. 80 CCLAP):

Here measures are primarily taken against disturbers (for example: to warn,

bring back to order, to expel)

They can have serious consequences (immediate repression)

… that one should not confuse with the offences committed within the hearing

(see art. 81 CCLAP):

They are serious acts which intervene during the hearing without causing

disorder (for example: insult, libellous denunciation, perjury)

18

The judge takes hold of the offence, sentences the accused and carries out

immediately the penalty, whatever personality of the offender.

However, this offence should not be a felony.

C. Particular procedures

1. The summary procedure (référé) Articles 185 to 188 CCLAP

a. General remarksØ The president of the Primary Court, the Intermediate Court, the High Court (or any

other appointed judge)…

…decides temporarily about an issue…

… whose solution admits of no delay (see art. 316 and 317 CCLAP)

It is about a delicate mission: it is necessary to have quality of decision and fast

comprehension.

b. Competence of the summary procedure’s judgeØ He/she makes a provisional decision on an emergency case.

This is an issue of fact which varies with circumstances

Courts have freedom to admit the urgency.

The judge’s decision doesn’t prejudge of anything on the solution to intervene about

the substance of the litigation.

According to art. 320 al. 1 CCLAP, there should not be any prejudice to the main

judicial action’s interests: the substance of the litigation is for an exclusive

competence of the judge seized of the principal/main judicial action.

According to art. 321 CCLAP, the decision is primarily provisional: there is

nothing final, even if sometimes measurements taken can be irrevocable.

c. Lawsuit in summary procedureØ The lawsuit is introduced by the defendant’s summons, followed by the parties’

appearance (see art. 318 CCLAP)

Ordinary rules apply…

… but the summons period/time is reduced (2 days)

Summary cases are not subject to pretrial conference (art. 24 CCLAP)

Debates in summary procedure are contradictory and open to the public, except cases

heard in camera (see art. 319 al. 1 CCLAP)

Ordinary rules apply except changes imposed by emergency

The judge rules at the latest in 48 hours (art. 319 al. 2 CCLAP)

19

The provisional order (summary procedure ruling) …

… is delivered upon grounds (‘motivé’) and issued publicly;

…then carried out temporarily…

… even when there is opposition or appeal (see art. 321 CCLAP).

This provisional order doesn’t have the res judicata authority.

d. Recourses of appeal (article 322, al. 4 CCLAP a contrario)Ø The failing defendant can make opposition in 5 days since the provisional order

notification/serving.

As for appeal, the period is 15 days since the verdict (‘prononcé de la decision’).

2. Exparte application (‘requête unilatérale’) - Articles 189 to 194 CCLAPØ It is about a written request addressed to the president of the court…

… without blaming ones opponent;

… again, the issue to deal with is urgent.

It is likely of revocation (Article 331 CCLAP)

Compared with the summary procedure;

… the exparte application is like the summary procedure in the sense that it is

justified by emergency and that the decision of the judge is provisional.

But it is different in the sense that it is proceeded unilaterally; see for example:

… the authorization to assign in the near future (article 45, al. 1 CCLAP);

… seizure of goods to prevent sale – ‘saisie conservatoire’ (article 239

CCLAP)

3. Small claims procedure (art. 196 to 211 CCLAP)Ø Admissibility of the request:

The subject value must be of 5 millions RWF maximum (excluding interests)

Parties must agree to the procedure (art. 197)

ü Cases:

All those not falling with conciliators competence (art. 201)

Commercial ones whose value doesn't exceed 5 millions RWF (art. 201)

Civil actions for offences on estates, land, crops and cattle, non violent theft,

fraud, breach of trust (art. 202)

v Payment of bouncing cheque or other negotiable instruments (art. 203)

Ø Applicable procedure:

ü The case filing follows ordinary CCLAP rules (art. 204); however …

20

court fees deposit is 10.000 RWF (art. 205 CCLAP),

defendant has 15 days to respond to plaintiff’s submission

ü He/she can propose a payment plan (granted within 1 day - see art. 206 in fineCCLAP): this put an end to the procedure.

ü The lawsuit continues if an agreement isn't reached

v there is no pretrial conference

v lawyers can be hired, but at parties own charge.

v hearing is conducted in public, aiming to reach common agreement

ü Verdict:

v is immediately enforced (art. 209, in fine CCLAP)

v If an agreement had been reached, elements to observe must be clearlyindicated (see art. 210, al. 2 CCLAP)

v a plan of execution is included (with time limit of 30 days)

Small claims are not subject to appeal (art. 211 CCLAP)

D. Incidents of procedure

1. Exceptos (or objections) and Denial of proceedings (or claim's inadmissbty)Ø For comparison, see article 83, al. 3 & 4, CCLAP.Ø Among exceptions, we distinguish…

… dilatory exceptions (see art. 91 CCLAP) : i.e. means by which a defendant asks

the judge to postpone to rule so that a judicial act or a period beforehand is

achieved; let us take the example…

… of the cautio judicatum solvi (Article 91 and 92 CCLAP): the defendant

requires from a foreign plaintiff the guarantee for expenses and damages except

if there are international agreements or real estate – the exception can be raised

for the 1st time at appeal.

… and that of request for guarantee (Article 118 CCLAP): a litigant blames a

guarantor and requires that he/she could be summoned to appear – the exception

must be raised in pretrial conference during the 1st appearance.

… the exceptions challenging the court’s competence/jurisdiction): i.e. means by

which a defendant asks the judge to temporarily refuse examination of the

plaintiff’s claim because the court is not competent – they are raised before all

others – we distinguish:

… the objection of lack of jurisdiction/competence (Article 93 & 94 CCLAP):

the exception must be justified and accompanied by the indication of the court of

reference – if the incompetence is recognized, the interested party has 5 days to

21

appeal against – if the exception is rejected, the interested party must await the

decision on the principal case, to appeal against it. (see espec.al. 3 & 5 of art. 94)

…the pendency of case objection (art. 95 CCLAP): the case in its triple identity

is carried before another court .

…and the objection of connexity (art. 95 CCLAP): two requests before differentcourts are closely dependent between them, so that by

judging them separately this should likely lead to a contrariety of judgements.

… and exceptions of nullity (art. 96 to 102, CCLAP): i.e. means by which a

defendant asks the judge to temporarily refuse the examination of the claim of

the plaintiff because there is irregularity of a procedural act.

To put forward this nullity, it is necessary to raise the exception in limine litis

and progressively with achievement of any concerned act (art. 98 CCLAP)

This exception is inoperative against a judgement (‘voies de nullité n’ont lieu

contre les jugements’).

As for the denial of proceedings (‘fin de non-recevoir’) or Plea of inadmissibility ofclaim (art. 83, al. 4 CCLAP),

… like the exceptions, they directly do not tackle the right of the plaintiff,

… on contrary, in case it is granted, the result is identical to that of an attack

against the case substance: i.e. end of the lawsuit.

It can be called upon at any stage of the lawsuit before closure of debates

(Art. 84 & 129 CCLAP)

Examples: the statute of limitations (“prescription”), the absence of

quality or interest (see art. 83 al.4, 126 to 128 CCLAP).

2. Incidents of evidence

a. Management of the documentary evidenceØ When the parties draw up a writing (authentic act or act under private writing) and

that it is questioned, two incidental procedures are available:

…the checking of a person’s writing (article 41 to 45 EL):

An incidental procedure in order to obtain recognition of the sincerity of an act

under private writing by the person to whom one opposes it.

The request for checking of writing is addressed to the judge who appreciates it

(are there delaying tactics, no interest for the solution of the litigation? etc.);

…there is then valuation (‘expertise’):

22

… production of the document for comparison

… or dictation of a similar text by the expert in the presence of the judge;

…if the document is recognized sincere, the author of the request is condemned to

pay a civil fine…

… in addition to costs, and possible damages.

The sanction doesn’t reach the heirs.

…and the plea of forgery (“inscription en faux”) - challenge to validity of authentic

documents (article 46 to 61 EL):

…an action brought against an authentic act to show that it is false or is falsified.

We distinguish:

…material forgery (deterioration afterwards: erasures, additions, etc.)

… from intellectual forgery (the act is not materially faded but contains

misrepresentations – ‘fausses déclarations’ – the act is not false if declarations

emanate from parties, except if they must be controlled by the public officer).

Quid of an act completely fabricated/made-up? Opinions are shared:

intellectual forgery because concerning the contents of the act – material forgery

because the act is completely faded and not partially.

There are 2 methods of plea of forgery:

… in theory, the plea of forgery is a civil incident forgery (the procedure takes

place before a civil court and during a principal lawsuit already in progress)

… in opposition to the principal criminal forgery (the litigant who wants to

tackle the forgery apart from any lawsuit in progress, can obtain it only before a

criminal court; forgery being an offence punished by criminal law: see art. 276 &277, New Penal Code).

Our judicial system doesn’t organize a principal civil forgery (see art. 13 EL),

from where we analyze the plea of forgery like an incidental procedure.

Procedure: making of the plea of forgery is long, expensive and uncertain (to

discourage reckless litigants)

1st stage: admissibility of the request (article 47 to 50 al. 1, EL): a party

requires his/her opponent to declare if he/she wants or not, to use the document –

response in 8 days (in case it is positive, request for a plea of forgery is

approved; if it is negative or in event of silence; the document is turned down) –

a decision of the judge notes admission of the plea of forgery.

23

2nd stage: determination of evidence (article 50 al. 2 to 60, EL): the document

to be examined is deposited at the registrar's office – the opposing party is

summoned to appear in 8 days since notification of plea of forgery decision – an

official report of the document deposit is drawn up in the presence of parties –

the plaintiff for the plea of forgery provides his means and the defendant

discusses them – the judge decides if the document checking has to be done by

experts.

3rd stage: production of the proof (Article 61 EL): evidence is made – the

judge’s decision intervene (in case plea of forgery is rejected, the document is

recognized sincere and the plaintiff is condemned to costs, fine, and possibly of

damages – if plea of forgery is allowed, the act is regarded as forgery and

destroyed or restored)

b. Management of the testimonial proofØ 1st phase: request of testimonial proof (Article 66 EL): the plaintiff enumerates the

facts to prove, which must be:

…admissible (authorized by the law)

… relevant (refer to the litigation)

… and significant (ringing, qualifying)

2nd phase: summons of witnesses (article 73 to 75 EL)…

… in the forms provided by ordinary procedure rules

In event of unjustified failure to appear:

… payment of civil fine (100.000 frw);

… the amount being doubled if the failure is repeated,

… with possibility of a summons/warrant to bring by force if the witness

persists in refusing to appear (see art. 74 EL)

3rd phase: hearing of witnesses (Article 67 to 73 EL):

Whoever can be a witness, except …

…descendants, ancestry, relations by marriage in a direct line, husband and

wife, divorcees (see art. 73, al. 3 EL) – servants of a couple in process of divorce

(art. 241 CCLI) – minors and certified persons (art. 387 and 431 a contrario

CLI)

…people excluded due to deprivation of some citizenship rights: for people

sentenced to life imprisonment, deprivation is total and perpetual (see art. 66 to

24

69 New Penal Code) – they give evidence/testify only by way of simple

information.

…people held by the professional secrecy (doctors, lawyers, notaries, etc.) for

facts known in the exercise/discharge of their duties.

Quid of objectionable people (“personnes reprochables)? for witnesses suspected

of partiality, the judge takes note of complaints about them and appreciates (see art.71 and 72 EL)

Witnesses testify separately (but can be confronted)

Each one declares his/her identity,

…takes an oath (in these words: "I swear to say the truth. May I face the law if

I tell lies") – raising the right hand; see art. 69 EL)

…then makes his/her testimony orally,

…and finally the registrar makes the reading of his/her testimony after what

he/she signs it.

c. Management of the proof by confessionØ The law distinguishes extrajudicial confession (Article 109 EL): statement made out of

the presence of a judge:

it can be written (see applicable rules for beginning of written proof);

… or verbal (see applicable rules for testimonial proof)

… from judicial confession (Article 110 EL): statement made in justice and which

binds the judge:

It can intervene at any stage of the lawsuit

It is inoperative if the contrary proof is impossible (see irrefragable presumption)

d. Management of the oath proof (Article 113 to 115 EL)Ø For various kinds of oath, see the evidence law course.

The decisive oath is more concerned than the suppletory oath (the 2 kinds are

known as probatory oaths);

…promissory oaths (taken by witnesses and experts) are not concerned.

The oath is received forthwith if the party is present at the lawsuit.

In event of absence, the hearing is deferred;

… if not the judge can find the party at his/her domicile/residence with the

registrar and 2 witnesses; he/she can even administer the oath in a court close to

his/her domicile/residence.

25

The opposing party is always informed so that at the time of the procedure he/she

is present.

e. Management of some material facts evidence

Inspection of premises (Article 100 to 102 EL)

The judge fixes the day and the place

His/her decision is notified to parties.

Inspection is done by the judge or judges of the seat, assisted by the registrar

Useful observations are made on the spot (opinion of experts, testimony of

witnesses, discussion with neighbors of litigants in case of land conflict, etc.)

Inspection is closed by an official report.

Valuation (Article 76 to 96 EL)

A decision of the judge orders the valuation by …

…stating its object,

…appointing the expert(s) (the court makes a choice of 1 and the parties

choose 2 – the expert has the right to refuse)

…and by specifying the time limit to present the report.

The expert notifies parties in 8 days since his/her appointment and indicates the

date and the place of the valuation process:

The procedure is contradictory,

… and in case of several experts, findings are made out together.

A single report is produced:

It points out the achieved operations,

…then expresses a justified single opinion (i.e. the opinion wining a majority

– any other opinion can be indicated but without referring to the author)

…and ends in with a written oath.

The expert can be heard before the court but not as a witness (only as part of an

information gathering).

Power of the report: it doesn’t bind the judge.

f. Other incidents related to evidence

Measures of conservation (see particular procedures)

Letters of request – ‘commissions rogatoires’ (art. 103 EL) – see course of OCJ

26

3. Incidents relating to judges and lawyers/attorneys

a. Incidents related to legal representationØ The ad litem mandate is different from the ordinary mandate in the sense…

…that the lawyer doesn’t have to prove before a court, the power conferred by a

litigant,

…and that he/she can make out all the acts of administration, including more

serious judicial acts (for example, to act about various rights, on behalf of a client

(‘droit de postuler’)

Removal (or revocation) of a lawyer or representative: the litigant dismisses him/her,

in order to take things in hand again or to make him/her replaced by another

It can intervene at any stage of the lawsuit (art. 87 al. 1 CCLAP).

Judicial acts that took place before removal remain valid (art. 87 al. 2 CCLAP).

Disowning of a lawyer or representative (“désaveu d'un avocat ou représentant”):

it takes place…

…when the lawyer made out legal acts exceeding limits of the power he/she

had been entrusted with, by a litigant;

…if he/she compromises the litigant’s interests,

…or in event of fraud (see art. 88 CCLAP).

Disowning is mainly raised during a lawsuit in progress (see art. 89 al. 2 CCLAP);

Proceedings take place before the court where the judicial act was accomplished:

If disowning is rejected: the judicial act is maintained – the plaintiff has to pay

damages (see art. 90 al. 3 CCLAP).

If disowning is allowed: the judicial act (or all proceedings which took place

before) is cancelled – sanctions (ie: damages) against the disowned lawyer can

be taken (see art. 90 al. 1 & 2 CCLAP)

b. Incidents tending to ensure impartiality of the judgesØ Transfer of case – ‘renvoi ou prorogation de compétence’ (see art. 119 & 120

CCLAP)

27

A case, instead of being brought before a competent court, is referred to another

court for 4 reasons (see art. 119 CCLAP):

… the seat cannot be made up (for example, the judge and the litigant are

bound by alliance or family ties)

… public safety,

… the positive or negative conflict

… and in case of connexity.

Applicable rules vary according to the cause:

… in theory a higher court operates transfer to lower courts (see al. 1, art. 119)

… exceptionally: in event of connexity or pendency of case, there is transfer to

the already seized court.

As for the procedure,

v … transfer of case can be requested at any stage of the lawsuit: automatically

by a higher court – by the concerned court – or at request of a litigant

… the lawsuit in progress is suspended (within 48 hours) and the file trans-mitted to the higher court which rules immediately, other cases suspended.

Challenge of the judge (Article 103 to 109 CCLAP)

A litigant raises an objection to one or more judges suspected of partiality.

A judge can challenge him/herself (see art. 104 CCLAP).

However, an omission from him/herself doesn’t cancel the decision.

Field of application: 7 cases are concerned (see art. 103 CCLAP);

we gather them in 5 categories:

… the judge, his spouse or his child has a personal interest in the case (1o);

… the judge or his spouse has alliance or family ties (direct or collateral up to

4th d) with another judge of the seat, a party or his/her representative/lawyer (2o)

… the judge has an unspecified feeling towards a party (3o and 4o)

… the judge has a former knowledge of the case (for example, as a witness, a

judicial senior police officer, etc.) (5o and 6o)

… or a judge, his/her relatives or relation by marriage had already a lawsuit

with one of the parties, his/her relatives or relation by marriage (7o)

As for proceedings, the challenge of a judge is raised at any stage of the lawsuit

(during hearing, before or after closure of debates - see al. 1 to 3 of art. 106

CCLAP) and adjourns automatically the proceedings (art. 106, al. 2 CCLAP):

28

Request is, within 1 day, justified before the court of the challenged judge (Article

106, al. 1 CCLAP)

…and communicated to the president of the court who suspends all other proJ

ceedings (hearing or deliberation) and then gives immediately a decision on the

challenge’s admissibility (art. 107, al. 1 CCLAP). In case of inadmissibility, pro-

ceedings continue (art. 107, al. 2 CCLAP).

If conditions of admissibility are accepted, the act of challenge is

communicated to the involved judge.

Substance of the challenge is, without summoning parties, examined within 8

days (see art. 108 al. 1 CCLAP) after the involved judge reacted (he/she has 2

days) to the act of challenge (Article 107 al. 3 CCLAP): if arguments of the litigant

are not accepted, the request is rejected – if reasons of challenge are proven or

when the involved judge agrees on it, a decision ordering to him to abstain from is

made (art. 108, al. 2 CCLAP).

Appeal against a judgement of challenge is excluded (art. 109 CCLAP).

4. Incidents relating specifically to the lawsuit

a. Incidents related to the widening of the lawsuitØ Additional request

The plaintiff formulates during a lawsuit in progress a new request (see art. 112

CCLAP)

There are 2 conditions of admissibility (Article 112 al. 3 CCLAP)

… the additional request must be related to the principal request/claim (it

proceeds of same object and cause with the principal request/claim – for

example: debt + interests)

… and the seized court for the principal request/claim must be qualified for the

additional request.

Concerning proceedings…

… the plaintiff gives initially the account of his/her main claim’s arguments,

… then formulates the additional request (if there is more, they are

cumulatively introduced – see art. 112 al. 2 CCLAP)

29

Counterclaim The defendant attacks on his/her turn the plaintiff by submitting a request (see art.

110 CCLAP)

2 cases of admissibility are enumerated (see art.110 CCLAP):

… a request being used as defence against the principal action (i.e. a request

aiming at destroying the effect of the principal request),

… and a demand for legal compensation

The court seized of the main claim must be competent for the counterclaim (Article

110 al. 2 CCLAP)

Concerning proceedings,

… counterclaim is submitted by simple pleas without payment of court fees(Article 110 al. 3 CCLAP)

… and the judge gives the decision in one judgement . "Counterclaim on counterclaim is not worth ": i.e. the counterclaim can only be

raised by the defendant.

Intervention

It is about a request made spontaneously by a third person against one of the

parties (voluntary intervention - art. 114 CCLAP), or made by one of the parties

against the third person (forced intervention - art. 115 to 118 CCLAP).

Procedure:

The 2 forms of intervention can be made at any stage of a lawsuit and at appeal

Intervention made before closure of debates obliges the judge to rule jointly

with the main claim – if not, there is disjunction of the two requests except if

there is risk to compromise irreparably interests of the intervening party (Article

117 CCLAP)

For voluntary intervention (see art. 114 CCLAP), we distinguish:

... additional intervention: the third person intervenes beside one of the parties

(from where consent or renunciation from the principal litigant makes fall the

30

intervention – for example: an unsecured creditor in a lawsuit where his/her debtor

is committed)

…from principal intervention: the third person intervenes to defend a distinct right

(for example: a secured creditor who intervenes to put forward his

mortgage – this intervention remains with the lawsuit in spite of the debtor’s con-

sent)

Voluntary intervention is formed by the act initiating proceedings with deposit of

court fees and has to meet requirements of the judicial action (Article 114 al. 1

CCLAP)

For forced intervention, ...the involved third person is neither party nor representative (see art. 115

CCLAP)

Typical example: the incidental demand for guarantee (without awaiting the

end of the lawsuit, a party involves his/her guarantor – the judge rules in the

same judgement on the 2 requests if they had been adjudicated at the same

time; see art. 118 CCLAP)

Forced intervention is allowed at appeal level (& once after, for the in-

tervening party); as long as it's not before the CA or SC (see art. 116)

b. Incidents related to the interruption of the lawsuit (renewal of lawsuit)Ø The interruption of lawsuit should not be confused with suspension of lawsuit:

…causes of suspension of a lawsuit don’t have anything to do with the situation of

parties (for example: dilatory exception) – and disappearance of the cause lets in the-

ory the lawsuit continue its course.

… while causes of interruption of the lawsuit imply a modification in the situation of

parties – and restart the lawsuit with an act initiating proceedings (no

consideration of what was accomplished before) – the cause must occur before closure

of debates.

There are 3 legal causes of interruption (see art. 121 CCLAP) without payment of any

other deposit :

…death of a party (renewal of the lawsuit by successors)

…change of a party’s civil status (for example: a minor had reached age of majority)

… and termination of his/her functions (for example: a repudiated or revoked tutor)

… and 1 judicial cause of interruption (see art. 55 CCLAP): i.e. a serious cause justifying

the plaintiff’s failure, whose case was deleted from the court register

is appreciated without appeal by the judge – and if renewal of lawsuit is allowed, there is

a new deposit of court expenses.

31

5 o According article 162 of the new law governing contracts (law n 45/2011 of 25/11/2011), “the decree of July,30th 1888 – i.e. CCLIII – shall remain effective for … special contracts, ...” until further changes.

c. Incidents related to extinction of the lawsuitØ In theory the lawsuit ends by a judgement (which removes the case from the

judge/court); we will see however that there exists…

… 3 other causes provided for by judicial law: renunciation – consent – and the

time limitation of lawsuit;

… as well as others concerned with other legal disciplines: transaction (see art. 583

CCLIII5) – death of a party in a divorce lawsuit (DCI) – statute of limitations after

30 years (DCIII)

Renunciation/discontinuance of lawsuit:

The plaintiff proposes to the defendant to end the lawsuit before the judgement without

giving up the right for which the judicial action was sued – see art. 122 to

124 CCLAP ).

Difference between renunciation of claim / action (more serious act implying

abandonment of the right itself - not subject to defendant's consent, art. 122)…

... and renunciation of case or procedural instruments (the abandonment relatesto some acts and not all the lawsuit – for example: the abandonment of additional pleaslacking evidence - To avoid remaining under the threat of the action which the plaintiffcan renew, this is subject to defendant's consent, art. 123, al. 1)

The renunciation of lawsuit has 3 effects (see art. 124 CCLAP):

Extinction of the claim or lawsuit – and prescription/statute of limitations is regarded

as not having never been stopped;

Obligation for the plaintiff to pay incurred lawsuit expenses (court & lawyer’s fees);

The right (in case of renunciation of case) remains intact (except if it is suppressed

by the statute of limitations or in the event of renunciation in appeal with expiry of the

time period)

The consent/admission of claim

The defendant complies with the plaintiff’s claim (see art. 125 CCLAP), and that in

2 ways:

… while abandoning defence,

… or recourses of appeal if judgement had been issued.

32

Form of consent:

… it can be explicit (i.e. made in formal declaration) or tacit (i.e. it results from

a whole of circumstances) –see art. 125, al. 3 CCLAP;

It’s different from renunciation: the consent is unilateral (i.e. it is not

subordinated to the plaintiff’s acceptance, except if it is conditional; see art. 125 al. 2

CCLAP)

If done before or during the pre-trial session, it's the president of court who is in charge(art. 125, in fine CCLAP)

Time limitation of lawsuit - “péremption d’instance” (art. 126 to 128 CCLAP)

The lawsuit is suppressed following parties’ inaction for 6 months since the last

procedural act (see art. 126, al. 1&2 CCLAP)

Negligence of the plaintiff,

and no one else appears.

It becomes effective when a judgement is issued.

v registrar's report, 6 months after

then, judgement of removal

ü Its effects

v ... are identical to those of renunciation: it is the lawsuit and not the right

which is extinct (see art. 128 al. 1 CCLAP);

... see also art. 128, al.2 CCLAP for the time limitation in case of appeal, op-position and petition for review.

No remedies allowed (art. 128, al. 3 CCLAP)

Chapter 10. Autonomy of administrative proceedings

Ø The administrative procedure is governed by appropriate provisions (see art. 177 to

184 CCLAP)

In the event of proceedings for annulment, request before an administrative court

is submitted with the involved administrative decision.

Are also added documents which justify a preliminary recourse (submission for an

out-of-court settlement) made before the administrative authority, author of the decision.

The time to seize the administrative court is, in accordance with art. 178 al. 3 à 5CCLAP…

… 6 months since notification of rejection of the administrative recourse;

… in case the administrative authority didn’t respond to the preliminary

recourse, the plaintiff must first wait 1 month before he/she could seize the court (in other

words, he/she has 1 + 6 months).

33

Request before an administrative court doesn’t suspend execution of the administrative

decision (Article 179 al. 1 CCLAP)

For remainder, civil procedure applies as a general rule of procedure (see art. 349

CCLAP)

B. Autonomy of commercial procedure (Article 350 to 359 CCLAP)Ø The act initiating proceedings (Article 350 to 352 CCLAP)

The plaintiff has first of all, to submit to the registrar's office his pleas and the

modes of evidence that he/she plans to use (see art. 351 CCLAP),

The defendant has to respond under the same conditions (i.e. to submit written

pleas for his/her defense) in 14 days since the plaintiff’s pleas had been

communicated.

preliminary hearing (Article 353 to 356 CCLAP)

The summons for this hearing is 14 days (Article 354 CCLAP);

It is about a stage of the procedure which aims at removing any obstacle which

would obstruct the good process of the lawsuit (in particular incidents seen

previously – see art. 355 CCLAP)

To check for admissibility of the request (1o to 3o);

To solve any problem related to evidence (4o to 7o)

To grant any provisional measure aiming at protecting litigants’ interests (8o)

To fix the date for examination of the case substance (9o) or even to decide

immediately, if examination of the case substance is not convenient (11o).

The preliminary hearing can be postponed only if a motivated request is made at

least 5 days before the date of appearance (see art. 356 CCLAP).

Examination of the case substance (Article 357 to 359 CCLAP)

Any delaying tactics at this stage of the procedure can cause damages payable at

the time of the next hearing (if not a penalty fee is fixed) – see art. 358, al. 2 to 4

CCLAP

For other details on the substance examination, see art. 359 CCLAP

For any other aspect of the commercial procedure which is not covered by the previous

provisions, civil procedure applies.

34

Chapter 11. Debates on deliberations (art. 130 & 131 CCLAP)Ø It is about a phase of the lawsuit during which judges discuss on the solution to

give to the case which was exposed and discussed before them.

It is held in secrecy (see art. 130, al. 1 CCLAP).

Only judges take part in it; registrars are not concerned.

A. Forms of debates on deliberationsØ For no complicated cases, debates on deliberations are made without judges having to

leave the courtroom (this is called ‘judgement on the seat’ )

For few cases, judges briefly retire in another courtroom to act in concert, and come

back few minutes afterwards to deliver the judgement.

For most cases, judges profit from a longer time which cannot however exceed 30

days (see art. 132, al.5 CCLAP).

B. Procedure in case of collegial judgeØ The opinion which outweighs all others has the absolute majority (i.e. half + 1 vote) –

see art. 130, al. 3 CCLAP.

There is initially the vote of the junior judge;

… that of the president of the seat comes lastly (Article 130, al. 2 CCLAP).

This also applies for administrative and commercial lawsuits.

35

TITLE IV. THE JUDGEMENT

Chapter 12. Acts of the judge

A. Administrative acts

1. noncontentious decision

In private law, such decisions intervene to give authenticity to certain acts:

For example: adoption

This kind of decision doesn’t have authority of res judicata.

In administrative law, the context is different: noncontentious decisions are

inappropriate because the acts of Administration have the privilege of precondition

which confers enforceability – ‘force exécutoire’ to them (i.e. Administration doesn’t

need to require any authorization of the judge to act).

2. Measures for judicial administration

These are acts relating to court’s functioning (for example: rules governing hearings)

No recourse against them can be allowed.

B. Jurisdictional acts (or judgements)

In a broad sense, it is about the act by which a judge rules (jus dicere i.e.: to express

the law), whatever the court he/she belongs to.

Nuances in romano-germanic system, about a decision of lower courts (‘jugement’), in

opposition to a decision coming from higher courts (‘arrêt’) don’t apply in common

law system.

1. Various categories

Let us distinguish the contradictory judgement and the judgment by default :

… in the 1st case, all the parties appeared and made the most of their pleading

means – this judgement cannot be attacked by opposition

… for the 2nd

case, the defendant did not appear – opposition is possible – appeal

is not possible unless the judgement is considered contradictory.

Let us distinguish the judgement in the 1st resort, from judgement in the 1

st resort

without appeal and judgement in the last resort:

In the 1st case, it is a judgement delivered by a court which rules at the 1

st degree,

with possibility of appealing to a court of the 2nd

degree.

36

In the 2nd case, it is a judgement delivered at the 1st degree without possibility to

challenge it at appeal, because litigation doesn’t have for example a certain

pecuniary value provided by the law (see for example art. 67 COFCJ).

For the last case, it is about a judgement delivered after appeal.

Such a judgement can be attacked only by extraordinary remedies.

We distinguish noncontentious judgement from contentious judgement:

For the 1st one, a court intervenes apart from any litigation:

… the judge controls only conditions under which an act is made.

For example: judgement of an adoption homologation (see art. 341, al. 1 CCLI)

For the 2nd, the judicial action supposes existence of a litigation:

… the plaintiff claims…

… the defendant takes issue…

… and the judge settles once and for all.

We distinguish final judgment from the no final judgement – ‘avant-dire-droit’:

In the 2nd case, the judgement, without ruling on the litigation substance, orders…

…a provisional measure to protect litigants’ interests (for example, judgement

about children care in a divorce lawsuit): it is a provisional judgement;

…a measure of investigation which doesn’t prejudge on the decision substance

(for example the judge orders personal appearance of a party): it is a preparatory

judgement;

…a measure of investigation which lets prejudge the decision substance (for

example, the judge orders an investigation in the divorce action where a litigant

calls upon aggravated assault); it is an interlocutory judgement: if evidence of

the pleaded facts is reported, divorce will be allowed – however, ` the

interlocutory doesn’t bind the judge '.

In the 1st case, the judgement exhausts the judge’s competence on a litigious

question:

It has authority of res judicata…

… but is not necessarily irrevocable.

A judgement can also be mixed when it settles once and for all a litigious question

and orders at the same time a measure of investigation. For example, a judgement

37

grants civil liability for a motorist while ordering a valuation to determine

damages.

2. Effects of the judgement

Their starting point varies:

… in theory, judgements are declaratory:

… i.e. in most cases, judgements certify a pre-existent right,

…they take effect as from the day when the request is formulated (in other

words, judgements retroact).

The judgement is exceptionally constitutive or attributive:

…for example, judgement of divorce.

In this concrete case, effects date from the day when the judgement is

delivered.

We analyze them from 3 points of view:

If the protected right were subjected to a short statute of limitations – “courte

prescription” (for example 6 months – see case of a teacher in art. 652 CCLIII6 –

or 1 year – see that of the doctor at art. 653 CCLIII), it becomes consolidated by

the judgement (there is prescription/statute of limitations by 30 years – see art. 647

CCLIII7).

As soon as a judgement is delivered, the judge can, neither to retract, nor to modify

it (except case of rectifying a material error before appeal did take place).

It has authority of the final decision/res judicata: i.e. a presumption of truth allotted

by the law to the judgement (see art. 105, 3o EL)

3 conditions for application of this presumption are cumulative: identity for the

object, the cause and the parties.

Its field of application: the authority of res judicata binds the parties, the judge

and even the legislator – it applies to contentious judgements, more precisely to

the judgement provision (‘dispositif’) i.e. mesures decided by the judge.

Enforcement of the judgement:

The judgement is initially notified to the interested party.

Then comes its forcibility which can be provisional or final according to whether

there is force of res judicata or irrevocability of the judgement.

6 See supra note 1 7 Ibidem

38

Chapter 13. Drafting and notification of the judgement

A. Drawing up of the judgement

1. Various parts of the judgement (Article 136 CCLAP)Ø The first indications of the judgement relate to quality and appearance of the litigants

as well as the court which is ruling: names – plaintiff/defendant – domicile/residence –

contradictory/by default character of the lawsuit – date, name and level of the court.

Other indications are at the end of the judgement: names and signature of the judges

and registrar – public character of the verdict.

Appear in the medium of the judgement,

…reasons: they are the arguments or reasons of the decision of the judge

The judge responds to all the pleas of parties

…and indicates legal provisions applied.

…and the provision: i.e. the solution for a litigation, to which authority of res

judicata applies. The judge comes to a conclusion about…

… the object of the lawsuit (for example: delivery of assets) which allows to

know who is the winner;

… the liquidation of damages;

… completion periods;

… and costs (the looser is ordered to pay them)

2. Record and authentic copy of the judgementØ The record is the original act of the judgement attached to the report of hearing and

signed by the judge and the registrar – it is preserved at the registrar's office

Authentic copies are issued for anyone interested in the case

The enforceable copy is a copy of the record delivered to the winner and on which is

taken the executory – ‘formule exécutoire’ (see art. 198 & 199 CCLAP).

3. Sanctions of the judgement formØ Nullity (for example, the number of the judges who sit in a case was not respected –

see art. 64, al. 1 and 2 CCLAP; the verdict was not public, or the judgement is not

motivated – see art. 147 CCLAP)

Inexistence of the judgement (for example, a decision delivered by someone who is not

a judge)

39

To put forward any sanction against a judgement, only recourses of appeal can be

applied and not any action for annulment: "ways of nullity do not take place against

judgements":

No action for annulment against a judgement, comparable with those directed

against most legal acts.

The only means to tackle a judgement, whatever the vice, remain recourses of

appeal.

In other words, the sanction (nullity) remains, but means to reach that point are

limited.

B. Verdict

Judgements are delivered publicly…

… even when debates took place in camera.

1. Notification of judgements

It is the fact of making available for litigants (in particular losers) the decision

delivered by the judge.

For a contradictory judgement, a public verdict is worth notification.

For a judgment by default, the failing party must be acknowledged according to legal

provisions ordinary applicable to judicial acts (see articles 149, al. 4 and 163, al. 2

CCLAP).

2. Effects

The verdict makes run the time period for recourses of appeal.

It also makes possible to carry out seizure of real estate (except if recourses of appeal

have a suspensive effect)

40

TITLE V. RECOURSES OF APPEAL These are means by which litigants ask for a new examination of their lawsuit, while

supporting that the decision obtained is vitiated with injustice or error.

They are 4: opposition, appeal, opposition by third party and petition for review.

They are the only means by which a court order can be attacked, whatever is the

vice.

We distinguish:

… ordinary recourses of appeal …

… which are in theory always opened to litigants

… and have a suspensory effect (except when the judge ordered provisional

enforcement)

… and extraordinary recourses of appeal …

… which are open for enumerated restrictive cases.

They are used only if ordinary recourses of appeal are exhausted.

Recourses of appeal are also subdivided in…

… reformation proceedings:

… i.e. by a given recourse, a litigant applies to a court hierarchically higher

than the court having issued the challenged decision;

… for example: appeal.

… and retraction proceedings :

… in this case, litigants come back before the court which ruled previously;

… for example: opposition.

Concerning various recourses of appeal in administrative dispute,

…the ordinary procedure (i.e. stated previously) applies.

Moreover, opposition by the State is not easily possible, because the failure of the

Administration is prevented by various means (of communication inter alia).

Chapter 14. Ordinary recourses of appeal

A. Opposition

1. Definition

Opposition is a recourse of appeal exerted against a judgement by default by which a

litigant asks the court which ruled to state again on the case (article 155 CCLAP).