First I would like to thank Pr Dyson : It was a great pleasure and
honour to participate in this project. Thank you for this wonderful
work, incredibly well organized, and for all the serious and so
interesting discussions, still in an warm atmosphere.
It's been an absolute pleasure to work with you and all our colleages.
I will just
underline few key points of the french chapter, that we wrote, Pr.
Malabat and I.
the quest for balance between tort and crime, in french
law, through Institutions, Procedure, and Substantive law
About procedural links, the victim suffering from harm
caused by a criminal offence has important rights since he can choose
to file a compensatory claim before a civil judge, or initiate a
criminal trial, as a « partie civile ».
Most of the time, the victim is free to make that choice.
- The victim can join his civil action to a prosecution that has
already been filed
- or he can file his civil action before a criminal judge although
the public prosecutor’s office has not instigated a public
It is the victim who might then force the prosecutor to start the
judge gives a decision on both the criminal action and the combined
civil claim. This double character is a concrete expression of the
specificity of the French system
to join proceedings as a civil party (partie civile) in front of
a criminal judge is very significant.
It is an express link between two otherwise separate jurisdictions,
the criminal and the civil, based on the consequences of one act.
option is interesting in several terms
Beyond the private interests of the victim (which are afforded protection
through the action for damages), it is also in the public interest
that criminal offences be prosecuted.
A civil claim requires the claimant to prove that the defendant’s
fault did in fact cause him injury. As part of a claim brought by
a partie civile, by contrast, the public prosecutor must prove the
elements of the crime, which are then used by the victim to substantiate
his tort claim.
In french procedure we make a difference between « action
civile » and « action à fin civile»
The civil action (action civile) within a criminal process is a
claim for compensation arising from the harm caused by the offence.
By contrast, ‘actions with civil ends’ (actions à
fins civiles) cannot be brought before a criminal judge; they must
always be brought before a civil judge.
An action with civil ends does not seek to repair the damage caused
by the offence
but rather to draw some civil consequences out of the offence or
to enforce a right that the offence may have infringed.
: an action for recovering stolen property
is difficult to implement in practice.
For example, a victim of domestic abuse can obtain damages in a
but cannot obtain a divorce decision from the same judge; he would
be forced to go to a civil judge to rule on this request.
But, by joining
proceedings as a civil party, he receives compensation faster, with
less effort on his part
and, most importantly, he becomes a party in the criminal procedure
thus gaining significant rights to participate and be informed.
An other important principle is the authority of Res Judicata, la
« chose jugée » :
the authority of a criminal judgment on a civil case.
This means that a civil judge cannot contradict a decision made
by the criminal judge on the elements noted in the criminal decision.
Those key elements, which cannot be disputed in a later civil court,
the existence of a causal link between the defendant’s act
and the harm to the victim,
the existence of an intentional or negligent misconduct,
the specific harm and other material facts
The scope of
the « chose jugée » was long stable, but recently
changed thanks to the law of 10 July 2000
on a procedural level but also on a substantive level.
Since 2000 indirectly and non-intentionally caused harms in criminal
law require an higher degree of fault a « faute délibérée
» (a deliberate breach of a protective rule) or a «
faute caractérisée » (misconduct creating a
serious risk to another which the defendant must have known about).
Therefore although a criminal judge may acquit on the grounds that
there is no high degree of negligence, according to Article 4–1,
a civil judge may nonetheless award damages for imprudent conduct
under Article 1383 (thirteen and eighty-two) of the Civil Code.
is a sharp contrast between the civil law’s general
definitions of the fault, which is a broad definition and the criminal
law which, according to the principle of legality (légalité
criminelle), must always precisely stipulate the constituent elements
of a criminal offence.
French law used to know a principle of unity between civil and criminal
fault. This principle had been established in a 1912 (nineteen twelve)
In a civil fault had formely two components:
– An objective component: the behaviour is inappropriate and
deviates from an ideal model;
– A subjective, moral component: the judge can impute this
behaviour to its author.
decided that those suffering from a mental disorder should be civilly
liable for civil fault, and the Cour de cassation took a similar
decision regarding young children.
is now defined only by one objective component: a behaviour deviating
from the ideal model (the prudent man rule: ‘good family man’
or ‘the reasonable man’).
The same solution
cannot be adopted in criminal law: subjective imputation is always
required. Consequently, the definition of civil and criminal fault
Damages and punishments
There is junction
points between the purposes of criminal law (punishment, preventing
recidivism) and tort law (compensation for losses)
the damages reach punishments
that modern French tort law is not restricted to compensatory goals,
but can also be used to punish a defendant. The concept of punitive
damages is debated in France.
Three draft reform projects proposed to integrate punitive damages
in the Civil Code; part of the damages award would go to the victim,
the other part to the state.
In 2010 (two thousand ten), the Cour de Cassation recognised a punitive
damage award granted by an American court. In this case, la Cour
de Cassation just said that the amount was dispropotionate, but
the principle was accepted
while in theory, damages are purely compensatory, in practice they
may include a punitive element.
In some cases, the award is explained by reference to somewhat abstract
or unclear criteria, thus suggesting the existence of an underlying
For instance, damages for non-pecuniary loss suffered by an indirect
victim, the victim’ss family (the victim ‘par ricochet’):
those damages are probably punitive, since the harm they suffer
This is also true of damages awarded for a company’s trouble
in commercial operations, which are also immeasurable.
punishments reach damages
role is becoming more and more significant in French criminal procedure.
For exemple, the ‘sanction-réparation’.
While being a form of compensation, it is a criminal penalty,
introduced in the Criminal Code by the law of 5 March 2007.
The convicted defendant must compensate the victim’s losses,
by paying him damages within a limited timeframe. The victim must
approve this sanction.
The public prosecutor then certifies that the defendant has complied
with his obligation to compensate.
is the most recent and definite (net certain indéniable)
victim-friendly policy in criminal law, since the victim and his
wishes are central to the determination of the defendant’s
more details and developpements in the book, thank you very much