The quest for balance between tort and crime in French Law,

in « Comparing Tort and Crime »,
V. Wester-Ouisse et V. Malabat
Dir. Matthew Dyson, Trinity College of Cambridge,
préface A. Garapon,

Cambridge Edition 2015, p. 73


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.

We studied the quest for balance between tort and crime, in french law, through Institutions, Procedure, and Substantive law

1 - 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 action
It is the victim who might then force the prosecutor to start the criminal proceedings;

The criminal 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

The possibility 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.

Finally, this 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.

2 - 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.

For instance : an action for recovering stolen property

This dissociation is difficult to implement in practice.
For example, a victim of domestic abuse can obtain damages in a criminal court
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.

3 – 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, are:
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.

Today there 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.

Historically, French law used to know a principle of unity between civil and criminal fault. This principle had been established in a 1912 (nineteen twelve) case
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.

The legislator 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.

Civil fault 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 remains different.

About Damages and punishments

There is junction points between the purposes of criminal law (punishment, preventing recidivism) and tort law (compensation for losses)

Sometimes, the damages reach punishments

It appears 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

More generally, 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 retributive function.
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 is immeasurable.
This is also true of damages awarded for a company’s trouble in commercial operations, which are also immeasurable.

Sometimes, punishments reach damages

The victim’s 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.

The sanction-réparation 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 obligations.

Much more details and developpements in the book, thank you very much


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