Abstract
In France, only a few isolated statutes and decrees deal with international co-operation in litigation.
The authors wish to express their gratitude to the Honorable Louis Legorju, Vice-Président au Tribunal de Grande Instance de Paris, and to Professor Christian Gavalda of the University of Dijon, who provided valuable comments and suggestions.
B.A. 1952, Hobart College ; LL.B 1955, Syracuse University ; LL.M. 1956, Columbia University ; Associate Professor of Law, Syracuse University.
LL.B. 1946, LL.M. 1949, University of Amsterdam ; M.A. 1953, LL.B. 1958, Columbia University; Professor of Law, Columbia University ; Director, Project on International Procedure, Columbia University.
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References
Code de Procédure Civile art. 69(10) (service abroad); Code de Procédure Civile art. 73 (non-resident defendant’s time to appear). See also Code de Procédure Civile art. 444 (nonresident’s time to appeal) and art. 158 bis (non-resident’s time to demand a reopening of a default). These two articles refer back to Article 73 for the applicable time period.
The obligation to post security depends on nationality, not on domicile. Security must be posted not only for costs, but also for any judgment for damages on an eventual counterclaim based on malicious prosecution. Code de Procédure Civile arts. 166, 167; Code Civil art. 16.
Décret No. 46-2390 of Oct. 23, 1946, Journal Officiel DE LA République Française [hereinafter cited as J.O.] Oct. 29, 1946, p. 9201, [1946] Dalloz Législation [hereinafter cited as D.L.] 437. Of minor significance is Décret No. 62-1461 of Nov. 27, 1962, J.O. Dec. 6, 1962, p. 11938, [1963] D.L. 1, concerning the notarial functions of consuls.
One of the more recent ones is the circular of the Minister of Justice of May 20, 1925, 1925 Bulletin DU Ministère DE LA Justice 30, 54 Journal DU Droit International [hereinafter cited as Clunet] 241 (1927). While it deals mainly with co-operation with Austria, it also contains provisions relating to co-operation in general and summarizes some earlier circulars. For a list of circulars, see Japiot, Commission Rogatoire (Matière Civile), in 4 DE Lapradelle & Niboyet, Répertoire DE Droit International 73, 77 (1929).
Members of the ministère public are attached to the first instance courts of general competence (tribunaux de grande instance), the intermediate appellate courts (cours d’appel), and the French Supreme Court, the Cour de Cassation. No member of the ministère public is attached to the specialized courts, such as the labor courts and the commercial courts. The head of the ministère public at a court of first instance is called procureur de la République; the heads of the ministère public at the cours d’appel and Cour de Cassation are called procureurs généraux. The office of the procureur de la République is often called parquet. Since the ministère public is active in the criminal field, it has a certain control over the police. On the ministère public generally, see Kock, The Machinery of Law Administration in France, 108 U. P?. L. Rev. 366 (1960).
See Code de Procédure Penale art. 562; Law of March 10, 1927, J.O. March 11, 1927, [1927] D. 4.265 [1927] S. 5.910 (with extensive legislative history). See also Instruction Générale art. C 703, accompanying the French Code of Criminal Procedure, and the circular of the Ministry of Justice of June 14, 1950, reprinted in Jurisclasseur DE Droit International, fasc. 405 A, p. 2 (1962).
Convention relating to Civil procedure signed at The Hague, March 1, 1954, 286 U.N.T.S. 243 (1958), published in France by Décret No. 59-1122 of Sept. 19, 1959, J.O. Sept. 30, 1959, p. 9429, 87 Clunet 590 (1960), [1959] D.L. 608. As to those states which adhered to it, the agreement replaced the Hague agreement of July 17, 1905, 2 Martens (3d ser.) 243, J.O. May 2, 1909. The parties to the 1954 Agreement are listed in Dalloz, Répertoire DE Procédure Civile ET Commerciale, Commission Rogatoire, at No. 65 (Supp. 1963). France is also one of the signatories to the European convention on co-operation in criminal matters, but for lack of sufficient ratifications this convention, signed on April 20, 1959, has not yet gone into effect. See Jurisclasseur DE Droit International, fasc. 405 A, at No. 9 (1962).
Convention concerning extracts (multilingual summaries) of birth, death, and marriage records, signed at Paris on Sept. 27, 1956, 299 U.N.T.S. 211 (1958), published by Décret No. 57-1427 of Dec. 10, 1957, J.O. Jan. 9, 1958, p. 291, [1958] D.L. 31; Convention concerning the authentication of birth, death, and marriage certificates and their free delivery, signed at Paris, Sept. 26, 1956, published by Décret No. 59-1018 of August 26, 1959, J.O. August 2, 1959, p. 8614, [1959] D.L. 577; Convention relating to the exchange of information concerning birth, death, and marriage records signed at Istanbul Sept. 4, 1958, published by Décret No. 59-1303 of Nov. 13, 1959, J.O. Nov. 19, 1959, p. 11064, [1959] D.L. 644; Convention concerning the recognition of natural children signed at Rome on Sept. 14, 1961, published by Décret No. 62-833 of July 19, 1962, J.O. July 24, 1962, p. 7286, 89 Clunet 1148 (1962), [1962] D.L. 242; Convention concerning enforcement of support obligations, signed at New York on June 20, 1956, 268 U.N.T.S. 3 (1956), published in France by Décret No. 60-1086 of Oct. 6, 1960, J.O. Oct. 12, 1960, p. 9311, 88 Clunet 588 (1961), [1960] D.L. 354.
These treaties are listed at 1 Dalloz, op. cit supra note 7, at No. 65 (1955 and Supp. 1963) and 1 Solus & Perrot, Droit Judiciaire Privé 350 (1961) [hereinafter cited as Solus & Perrot]. Among the more recent agreements with European powers, the following may be mentioned: Convention with Belgium of March 1, 1956, published by Décret No. 59-749 of June 18, 1959, J.O. June 29, 1959, p. 6183, [1959] D.L. 524, 87 Clunet 296 (1960), amended by exchange of letters promulgated by Décret No. 60-1117 of Oct. 18, 1960, J.O. Oct 21, 1960, p. 9559; Convention with Italy, signed Jan. 2, 1955, published by Décret No. 59-629 of May 5, 1959, J.O. May 17, 1959, p. 5078, [1959] J.C.P. 3.24603, 87 Clunet 288 (1960); Convention with Sweden, signed March 7, 1956, published by Décret No. 59-873 of July 15, 1959, J.O. July 24, 1959, p. 7350, 87 Clunet 621 (1960); Convention with Germany (Federal Republic), signed May 6, 1961, published by Décret No. 61-1107 of Oct. 4, 1961, J.O. Oct. 10, 1961, p. 9237, [1961] D.L. 317. The agreements with Germany and Sweden merely implement the Hague convention, supra note 7. Of particular interest are the treaties with Great Britain. See Agreement concerning cooperation in litigation of Feb. 2, 1922, published in France by Décret of June 16, 1922, J.O. June 20, 1922, p. 6446, 49 Clunet 485 (1922), [1923] S. 5.959. With minor modifications, the convention is also applicable between France and Northern Ireland, the Irish Republic, Australia, Canada, and Scotland. Jurisclasseur DE Droit International, fasc. 589B, No. 6 (1961). See also Convention concerning the enforcement of judgments of Jan. 18, 1934, published in France by Décret of June 2, 1936, J.O. June 30, 1936, 62 Clunet 1115 (1935), [1937] D. 4.76; Agreement of April 3, 1937, concerning the admission of documents without authentication, J.O. May 30, 1937, 65 Clunet 137 (1938); Convention concerning security for costs and legal aid of April 15, 1936, published in France by Décret No. 48-2053 of Dec. 6, 1948, J.O. February 2, 1949, p. 1184, 73-76 Clunet 408 (1949), [1949] D.L. 118.
See, e.g., the Agreement with Switzerland of August 26, 1926, concerning the exchange of information concerning birth, death, and marriage certificates and the admission of such certificates into evidence without authentication, published by Décret of Oct. 20, 1926, J.O. Oct. 26, 1926, 54 Clunet 249 (1927).
Provisions relating to co-operation in litigation are often included in the agreements providing for the transfer of French judicial services to the new countries and the use of French judges pending the creation of an adequate domestic judiciary. The similarity between the judicial systems in France and her former colonies or possessions make cooperation easier. See, e.g., Judicial protocol with Algeria of August 28, 1962, published by Décret No. 62-1020 of August 29, 1962, J.O. Aug. 30, 1962, p. 8506, [1962] D.L. 293, 89 Clunet 1152 (1962); Judicial convention with Cameroon, signed Nov. 13, 1960, published by Décret No. 61-877 of July 31, 1961, J.O. Aug. 9, 1961, p. 7429, 7443, 88 Clunet 1216 (1961); Agreement concerning co-operation in judicial matters with the Ivory Coast, signed April 24, 1961, published by Décret No. 62-136 of Jan. 23, 1962, J.O. Feb. 6, 1962, p. 804, 89 Clunet 802 (1962); Agreement on judicial co-operation with Laos of Oct. 22, 1953, published by Décret No. 59-593 of April 22, 1959, J.O. May 3, 1959, p. 4758, 87 Clunet 254 (1960); Agreement on judicial co-operation with Malagasy Republic of June 27, 1960, published by Décret No. 60-692 of July 19, 1960, J.O. July 20, 1960, p. 6607, 87 Clunet 1118 (1960), [1960] D.L. 301; Agreement on judicial co-operation with Mauretania (completely identical to agreement with Ivory Coast, see 89 Clunet 824 (1962)); Protocols on judicial co-operation and exequatur with Viet-Nam of Sept, 15, 1954, published by Décret No. 59-593 of April 22, 1959, J.O. May 3, 1959, p. 4758, 87 Clunet 260, 264 (1960).
Extradition Convention of January 6, 1909, 37 Stat. 1526 (1913), T.S. No. 561.
Convention of October 18, 1946, 64 Stat. (3)B3 (1950), T.I.A.S. No. 1982, tit. 3, arts. 8-15, modified by protocol of May 17, 1948, 64 Stat. (3)B28 (1950), T.I.A.S. No. 3844. On United States-French tax conventions generally, see Delaume, American-French Private International Law 50-54 (2d ed. 1961.)
Consular Convention of February 23, 1853, 10 Stat. 992 (1853), 1 Malloy 528.
Convention of Establishment with France of Nov. 25, 1959, [1960] 2 U.S.T. & O.I.A. 2398, T.I.A.S. No. 4625. The convention does not deal with service of process and letters rogatory or depositions; the annexed protocol specifically states that is does not affect security for costs (art. 3). American plaintiffs in France are therefore compelled to post security to the full extent described in note 2 supra. However, under art. Iii of the treaty, American nationals can obtain legal aid (assistance judiciaire) in France. See McPhail, Security for Costs and its Treatment in United States Treaties, 37 Tul. L. Rev. 460, 466-67 (1963).
Décret No. 58-1292 of Dec. 22, 1958, J.O. Dec. 23, 1958, p. 11621, [1959] D.L. 55, art. 63 (labor courts); Décret No. 58-1921 of Dec. 22, 1958, J.O. Dec. 23, 1958, p. 11613, [1959] D.L. 49, arts. 15, 33 (social security cases); Décret No. 58-1293 of Dec. 22, 1958, J.O. Dec. 23, 1958, p. 11627, [1959] D.L. 87, art. 11 (farm tenancy courts). Service by mail is also used a great deal in the courts of Alsace-Lorraine, where German procedure is still largely in force. 1 Solus & Perrot 321.
Vickers v. Boutigny, Cass. Civ. (2d sect.), June 30, 1955, [1956] DJ. 465 (notice of appeal); 1 Solus & Perrot at 348; Batiffol, Traité Elémentaire DE Droit International Privé at 823 (3d ed. 1959) [hereinafter cited Batiffol; Note Goldman appended to Mathys v. Renaudin, Cour d’Appel Amiens, March 27, 1962, 89 Clunet 986 (1962). However, service on the ministère public is unavailable in one instance: In the case of attachment or garnishment of property in the hands of a third party, it is not permissible to serve the notice of attachment or garnishment on a third party residing outside of continental France through the ministère public. Code de Procédure Civile art. 560.
Dalloz, Répertoire DE Procédure Civile ET Commerciale, Exploit, at Nos. 290–95 (1955).
The huissier may prepare certain legal documents which he serves, such as the original process (ajournement) by which the action is started, but when a party is represented by counsel, counsel usually prepares these documents. Huissiers may hire so-called sworn clerks who are authorized to serve papers for their employers. The official title of the huissiers is huissiers de justice, but that title is rarely used.
The stamp tax is F. 2.50 (about $.50) per page; a tax is due both for the copy and one original, but not for the duplicate original. Ajournements usually run to two or three pages, so that the total stamp tax is about F. 15. (about $ 3). In addition, ajournements are subject to an enrégistrement tax of F. 5 (about $ 1). Neither stamp nor enrégistrement tax is due if the amount in controversy is less than F. 1500 (about $ 300), nor in certain other cases. Law No. 63-254 of March 15, 1963, J.O. March 17, 1963, p. 2579, [1963] D.L. 97, arts. 3, 4, 6, 34.
A few countries require that a translation accompany the French original if servicei: to be made in a formal manner by their authorities. Jurisclasseur DE Droit Inte National, fasc. 583, No. 59 (1960). Under the French-British convention of 1922, supra note 9, art. 3, the original paper to be served, two copies, a translation into English, and a copy of the translation must be submitted if service is to be made in Britain through the intermediary of the High Court. The Hague agreement of 1954, supra note 7, art. 3, requires a translation only if service is to be made is some special form. It might be noted that there seems to be no legal requirement that the original of the paper served on the procureur be signed by him (see Code de Procédure Civile art. 68), though this is current practice.
Jurisclasseur DE Droit International, fasc. 583, No. 47 (1960).
Jurisclasseur DE Droit International, fasc. 583, No. 49 (1960).
Code de Procédure Civile art. 69(10).
Décret No. 46-2390, supra note 3, art. 2.
Jurisclasseur DE Droit International, fasc. 583, No. 54 (1960). For an example of a paper delivered by an American process server at the request of the French consulate in New York, see Dame d’Esterno v. d’Esterno, Cass. Civ. (2d sect.), Feb. 17, 1961, [1961] Bull. Civ. NO. 136, p. 100, 88 Clunet 1106 (1961) (note J.B.S.). A circular of the Ministry of Justice, referring specifically to Austria, but apparently stating a general rule, instructs French consuls who serve papers themselves rather than through the use of local authorities not to use any “compulsion.” Circular of the Ministry of Justice of May 20, 1925, supra note 4.
According to knowledgeable French lawyers, this is approximately the time it takes for a paper to reach the United States. The Jurisclasseur de Droit International, fasc. 583, at No. 66 (1960), states that the following periods elapse between the time a document is sent out by the French Foreign Ministry and the time the Ministry receives proof of service (a period which is not identical to the one mentioned in the text): United States 3-6 months Argentina 2-4 months Venezuela 4 months or more Japan 2-4 months Spain 3-6 months
French authors seem somewhat in doubt whether Code de Procédure Civile art. 69 (10) is applicable to the former French colonies which became part of the French Community or rather Article 69 (9) which governs service in colonies and is somewhat less complex. It would seem, however, that the former colonies, even though they still co-operate with France, must now be considered as sovereign states, so that Art. 69(10) is applicable. See 1 Solus & Perrot at 349 n. 5; Jurisclasseur DE Droit International, fasc. 583, No. 52 (1960). In practice, the problem is largely academic because the treaties between France and these countries regulate service of process in fair detail.
E.g., Agreements with the Ivory Coast and Mauretania, supra note 11, art. 1; Judicial Protocol with Algeria, supra note 11, art. 21. Most of these agreements also permit various other forms of service.
Agreement with the Federal Republic of Germany, supra note 9, art. 1.
Convention with Great Britain, supra note 9, art. 3. Cf. Harwood, Service and Evidence Abroad under English Civil Procedure, Part I, the Rules of the Supreme Court, 29 Geo. Wash. L. Rev. 497, 501, 502 (1961).
E.g., Hague Convention, supra note 7, art. 6 (with the proviso that the country to which the paper is sent may object).
E.g., Hague Convention, supra note 7, art. 6. Treaties specifically authorize French consuls to serve papers in Austria, Australia, Canada, Czechoslovakia, Great Britain, Ireland and the Netherlands, but in some of these countries only on French nationals. Jurisclasseur DE Droit International, fasc. 589 B, No. 12 (1961).
Most of the agreements with former French colonies, supra note 11, so provide, but limit this practical form of service to nationals of the country from which the service issues.
Under French law, letters rogatory are proper only in matters relating to proof. See note 95 infra.
Batiffol at 824; 1 Solus & Perrot at 354; Note Goldman appended in Clunet to Mathys v. Renaudin, Cour d’Appel Amiens, March 27, 1962, 89 Clunet 986 (1962), 52 Revue Critique DE Droit International Privé [hereinafter Rev. CR. D.I.P.] 91 (1963) (note Gavalda).
Dame Viret v. Viret, Cass. Civ. (2d sect.), Feb. 23, 1962, 89 Clunet 986 (1962) (service of a judgment on ministère public starts running of appeal period, notwithstanding rule contained in agreement with Morocco, where defendant resided, that local authorities making service must return proof of service). See also Krishana & Cie. v. Sté David & Cie, Cass. Civ., Nov. 30, 1938, 1939 Rev. CR. D.I.P. 312 (1939) (similar holding involving service in England); Dame Kirsch v. Kirsch, Cour d’Appel Paris, June 24, 1959, [1959] Gazette DU Palais 2.183 (spouse cited to appear for conciliation attempt required in all divorce cases failed to appear because not informed in time since citation served only on ministère public, which did not transmit it fast enough; held, absence of spouse does not invalidate proceedings).
Mathys v. Renaudin, supra note 36 (time to appeal from judgment in criminal case begins to run from day of actual notice; any other rule would be an unjustified discrimination against non-residents); cf. Oswald v. Receveur-Percepteur du Xe arrondissement de Paris, Cour d’Appel Paris, June 2, 1961, 50 Rev. CR. D.I.P. 808 (1961) (note Gavalda), 89 Clunet 1034 (1962), reversing Trib. Gde. Inst. Seine, Jan. 4, 1960, 50 Rev. CR. D.I.P. 174 (1961). But see Vve Delebois v. Emaillerie de Montreuil, Cour d’Appel Amiens, May 17, 1962, 90 Clunet 1078 (1963).
Gavalda, supra note 38, at 174, 180.
Dame d’Esterno v. d’Esterno, supra note 26. However, notice of the judgment received in an informal manner (e.g., through a letter) is also sufficient. 2 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Opposition, No. 70 (1956).
This seems to result from the Oswald case, supra note 38, which, however, was only a cour d’appel decision, and, at least by implication, from the decision of the Cour de Cassation in Dame d’Esterno v. d’Esterno, supra note 26. A very recent decision seems to hold the contrary, however. Dame Traudafir épouse Sfintescu v. Sfintescu, Cass. Civ. (2d sect.), Feb. 7, 1964, 91 Clunet 596 (1964), [1964] D.J. 247.
For instance, because it was not made by a properly qualified huissier or because it was made at the wrong place.
Code de Procédure Civile art. 173. See also Patino v. sa femme, Cour d’Appel Paris, July 1, 1959, 49 Rev. Cr. D.I.P. 192 (1960), 87 Clunet 424 (1960).
Service of process in France has merely a notice function. Competence of courts depends on other criteria, such as the nationality of parties. See Smit, The Terms Jurisdiction and Competence in Comparative Law, 10 AM. J. Comp. L. 164, 168, 169 (1961).
This is quite likely to happen, because transmission of documents takes so long. Cf. 1 Solus & Perrot at 354, esp. n. 2.
Opposition is available only in those instaces in which appeal is not available. Code de Procédure Civile art. 150; Cuche & Vincent, Procédure Civile ET Commerciale 416 (1960).
Literally, ways of nullity [i.e., collateral attacks] cannot be made against judgments in France. Cf. Cuche & Vincent, op. cit. supra note 46, at 63.
Raynaud, Chronique, 61 Revue Trimestrielle DE Droit Civil 391, 392 (1962) [hereinafter cited Rev. Trim. DR. Civ.]; 1 Solus & Perrot 356-58; 1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Exploit, at Nos. 174-77 (1956). On service abroad generally, see Rigaux, La signification des actes judiciaires à l’étranger, 52 Rev. CR. D.I.P. 448 (1963).
Code de Procédure Penale art. 562 is substantially similar to Code de Procédure Civile art. 69 (10). See also art. C 703 of the Instruction Générale of the Ministry of Justice accompanying the code. It should be noted that France has only a few agreements on cooperation in criminal cases with others than its former colonies. The agreements with Algeria, supra note 11, art. 21, and with Cameroon, supra note 11, art. 1, permit transmittal of documents directly to the ministère public concerned, but since a circular of the French Ministry of Justice states that all documents in penal matters to be sent abroad should be forwarded to it, direct transmittal from ministère public to ministère public is apparently excluded. See Circular of Ministry of Justice of June 14, 1950, reprinted in Jurisclasseur DE Droit International, fasc. 405 A, p. 2 (1962).
Cf. Schlesinger, Comparative Law 217-19 (2d ed. 1959); Cornu & Foyer, Procédure Civile 497-99 (1958).
Code de Procédure Civile arts. 252-280; Herzog, Proof of Facts in French Civil Procedure, the Reforms of 1958 and 1960, 10 AM. J. Comp. L. 169 (1961).
Code de Procédure Civile arts. 302-323.
Code de Procédure Civile arts. 295-301.
Code de Procédure Civile arts. 324-336. In some instances, the ancient decisory oath is still available, Code Civil arts. 1357-1369, but seems not to be used in practice.
Code du Commerce art. 15. See also Code du Commerce art. 14.
Code de Procedure Civile art. 1035. Such a delegation is mandatory whenever the proof proceeding involved has to take place outside the district in which the court is competent, since French judges may not act outside their territorial verge. Morel, Traité Elémentaire DE Procédure Civile art. 380 (1949).
Code de Procédure Civile art. 121 (decisory oath); art. 256 (enquête); art. 333 (examination of a party, i.e., comparution personnelle); Code du Commerce art. 16 (représentation of books of account).
The only articles in which the words commission rogatoire are used are Code de Procédure Civile art. 333 and Code du Commerce art. 16. The provisions cited in the preceding footnote state merely that one court may delegate (commettre) another court in its place. However, the term commission rogatoire is freely used by authors in all circumstances covered by these provisions. E.g., Dalloz, op. cit. supra note 9, at Nos. 1-4. The term commission rogatoire is used only in connection with proof proceedings, never in connection with service of process.
See note 57 supra.
For the courts directly governed by the Code of Civil Procedure, namely the tribunal d’instance (court of limited competence), the tribunal de grande instance (court of general competence), the cour d’appel (intermediate appellate court), and the commercial court, Code de Procédure Civile art. 1035 seems to provide sufficient authority permitting the use of letters rogatory.
French authors generally state that letters rogatory are available in connection with all proof proceedings (mesures d’instruction). See, e.g., Japiot, supra note 4, at 75. For a detailed discussion of letters rogatory in general, see Gavalda, Les Commissions Rogatoires Internationales en Matière Civile et Commerciale, 53 Rev. CR. D.I.P. 15 (1964).
The various types of proof proceedings known to French law are viewed as judicial acts (actes juridictionnels) which may take place only pursuant to court order before a judge or at least a public official. Cf. Goldman, De l’obtention des Preuves à l’Etranger, Intern. Bar Ass’n, 5TH Conf. Rep. 68, 74 (1954).
Subject to certain exceptions, contracts and other legal transactions, involving payment of more than F. 50 (about $ 12.50), may be proved only by documentary evidence. Code Civil art. 1341. Likewise, birth, death, and marriage must usually be proved by official certificates. See, e.g., Code Civil art. 194 (marriage). However, in the numerous situations in which oral evidence is admissible, the courts are also authorized to rely on inferences (présomptions de fait). Code Civil art. 1353. As a rule, certificates of experts, and other papers not obtained in regular proof proceedings, and, in fact amounting to gross hearsay, may be introduced and provide the basis for an inference which the court may draw concerning the facts in issue.
Code de Procédure Civile arts. 253, 254, 256. The request may be addressed either to the full court at the formal hearing or to the reporting judge (juge chargé de suivre la procédure), who is authorized to grant certain interlocutory types of relief before the case goes to a hearing. Code de Procédure Civile art. 251.
Excluded from testifying as witnesses are not only parties, but also, subject to some exceptions in actions involving personal status, spouses and close relatives. Code de Procédure Civile art. 262. Furthermore, Code Pénal art. 378 prohibits the disclosure of confidential information received by physicians and other persons acting in a professional capacity.
Jirisclasseur DE Droit International, fasc. 583, at No. 14. (1960). A translation is, of course, unnecessary, if the letters are sent to a French speaking country or if a treaty provides otherwise.
Submission of letters rogatory by foreign counsel directly to the foreign court is unusual.
Jurisclasseur DE Droit International, fasc. 583, at No. 11; cf. id., fasc. 589 B, at No. 30 (1961).
French consuls do not summon witnesses by a subpoena or other document threatening reprisals in case of non-appearance, but merely invite witnesses to appear. Jurisclasseur DE Droit International, fasc. 583, at No. 31 (1960). Two old lower court cases refused the issuance of letters rogatory to French consuls on the ground that the examination of witnesses involved a “judicial act” which could not be performed by an executive official such as a consul. No recent case seems to have questioned the right of consuls to examine witnesses. Cf. Gavalda, supra note 61, at 24, 25.
See, e.g., the Circular of May 20, 1925, concerning co-operation with Austria, supra note 4, and the Circular of the Ministry of Justice of Feb. 10, 1910, cited in 1 Dalloz, op. cit. supra note 7, at No. 64.
See note 69 supra.
See Jurisclasseur DE Droit International, fasc. 589 B, at No. 31 (1961).
Smit & Miller, International CO-Operation IN Civil Litigation, A Report ON Practices AND Procedures Prevailing IN THE United States 10 (1962). The consular convention with France, supra note 14, art. VI, sanctions the taking of depositions of nationals by consuls.
Juriaclasseur DE Droit International, fasc. 583, at Nos. 32-33 (1960).
Id. at Nos. 30, 31 (discussing relative advantages of use of French consuls and foreign courts for execution of letters rogatory).
Information kindly supplied by the French Consulate General in New York by letter of October 29, 1963. The letter indicates that an average of about 30 letters rogatory are executed annually by the French Consulate General in New York. However, it seems that in 1954, the consulate received about 150 letters, over half of them in criminal cases. LeLièvre, in Letters Rogatory 13 (Grossman ed. 1956).
For a general discussion of the expertise procedure, see Hammelmann, Expert Evidence, 10 Modern L. Rev. 32 (1947).
E.g., Jurisclasseur DE Droit International, faSC. 583, No 17. (1960).
There are a number of cases involving disability claims by foreigners who had worked temporarily in France in which the French courts have refused to permit the appointment of a foreign physician as an expert on the ground that the proceedings could have been instituted while the worker was still in France. Doubts as to the impartiality of foreign experts may have been at the root of these holdings. See, e.g., Andel v. Houillères de Ron-champ, Cour d’Appel Besançon, Oct. 6, 1934, 63 Clunet 137 (1936); Malek v. Mines d’Anzin, Cour d’Appel Douai, July 12, 1933, 61 Clunet 855 (1934). But see Compagnie des Mines de Courrières v. Smarzynski, Cass. Req., Dec. 13, 1933, 61 Clunet 858 (1934).
Code de Procédure Civile art. 306, as amended by Law of July 15, 1944, J.O. July 27, 1944, p. 1903, [1944] D. Anal. L. 82. The reason for the requirement may be that under French procedure experts are officers of the court.
1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Expertise, at No. 356 (1956).
E.g., Hague convention, supra note 7, art. 16 (state requesting appointment of expert may be required to pay his fees); Convention with Germany, supra note 9, art. 6 (same); Convention with Cameroon, supra note 11, art. 12 (same).
While a witness is sworn orally, an expert merely signs a written form containing an oath. Code de Procédure Civile art. 309. When an expert is appointed by a consul, the consul must return this form, together with the expert’s report and the papers forwarded him by the French Ministry of Foreign Affairs, after the expertise is concluded. Jurisclasseur DE Droit International, fasc. 583, at No. 34 (1960).
For a list of the more important agreements, see notes 7, 9, and 11 supra; Jurisclasseur DE Droit International, fasc. 589 B, No. 41 (1961). Although these agreements generally make it an obligation to comply with letters rogatory, they all contain exceptions for situations in which their execution would violate the security, public policy, or sovereignty of the state whose co-operation is sought. See, e.g., Hague Convention, supra note 7, art. 11; Convention with Great Britain, supra note 9, art. 6.
E.g., Agreement with Germany, supra note 9, art. 4; Agreement with Cameroon, supra note 11, art. 6; Judicial protocol with Algeria, supra note 11, art. 26. The Hague Convention supra note 7, art. 9, does not authorize the transmittal of letters rogatory directly from court to court. It authorizes transmittal through consuls instead of diplomatic channels, but permits a state to demand transmittal through diplomatic channels. A recent circular of the French Ministry of Justice seems to require that all letters rogatory, even those destined for a country in which transmittal directly to the court is authorized, be channelled through the Ministry. Jurisclasseur DE Droit International, fasc. 589 B, at No. 33 (1961).
By treaty, French consuls may take depositions both of their own nationals and of nationals of their host country in Austria, Czechoslovakia, Great Britain, Holland, Morocco, and Spain. Jurisclasseur DE Droit International, fasc. 589 B, No. 31 (1961). The other bilateral treaties authorize consuls to hear only their own nationals. E.g., Convention with Germany, supra note 9, art. 7. Sometimes, treaties require that consuls executing letters rogatory state expressly, when asking witnesses to appear, that no compulsion is used. See, e.g., Agreement with Germany, supra note 9, art. 7. The Hague Convention, supra note 7, art. 15, states that consuls may execute letters rogatory if a bilateral agreement so provides, or if the state on whose territory the consul is acting does not object.
The Hague Convention, supra note 7, provides in article 16 that the state that executes letters rogatory shall not demand any fees, except for reimbursement of witnesses and experts’ fees and possible extra expenses caused by the execution of letters rogatory in a special manner requested by the foreign country. Similar provisions are found in many other treaties. Sometimes the country executing letters rogatory agrees to bear even witnesses fees. See Agreement with Germany, supra note 9, art. 6 (only reimbursement for experts’ fees). The multilateral agreement on support proceedings, supra note 8, art. 7, excludes the payment of all costs.
Thus, the Hague Convention, supra note 7, art. 11, requires the country executing letters rogatory to use the same methods of compulsion it uses in purely domestic proceedings.
The Hague Convention, supra note 7 art. 10, requires all papers to be accompanied by a translation attested either by a consular officer of the state requesting assistance or by a sworn interpreter of the state in which assistance is requested.
E.g., Hague Convention, supra note 7, art. 14.
Convention with Great Britain, supra note 9, arts. 6, 7. The agreement, like the Hague Convention, states that a court executing letters rogatory shall, upon request, use a special form of procedure.
Convention with Great Britain, supra note 9, art. 8.
Jurisclasseur DE Droit International, fasc. 589 B, No. 34 (1962).
See Smit & Miller, op. cit. supra note 73, at 9, 10.
Executed letters rogatory are ordinarily retransmitted from the French consulate or embassy to the Ministry of Foreign Affairs, hence to the Ministry of Justice, which sends them to the appropriate ministère public, but foreign courts which received letters directly from a local ministère public will also return them that way.
Code de Procédure Civile arts. 274-278.
Cf. 1 Dalloz, op. cit. supra note 7, at No. 62.
E.g., Dame Ancel v. Ancel, Cass. Req., Nov. 22, 1916, [1918] S. I. 121 (statement by physician involving privileged communication). A French court might also refuse to recognize letters rogatory as valid if the foreign court had refused one of the parties the right to participate in the procedure or had acted unfairly. Batiffol at 808, 809.
See note 87 supra; Jurisclasseur DE Droit International, fasc. 589 B, No. 41 (1961).
Code de Procédure Civile arts. 324-336. The comparution personnelle procedure is not exclusive; a party present in court during a hearing dience) may make informal unsworn statements to the court. The use of the comparution personnelle procedure, which, like all French vpooi proceedings, requires a court order, is necessary when a party wishes the other side to be examined by the court.
Code de Procédure Civile art. 333 (letters rogatory to court of domicile or residence of a party possible in exceptional circumstances.)
Code de Procédure Civile art. 333 implies that the exceptional circumstances exist if the trip to the court is too expensive or burdensome.
Code de Procédure Civile art. 336 (dealing not with letters rogatory, but with comparution personnelle generally).
Law of May 23, 1942, J.O., June 11, 1942, p. 2034, [1942] D. Anal. L. 120.
See generally Hebraud, Commentaire, Loi de 23 mai 1942 sur la comparution personnelle, [1943] D. CR. L. 10.
This authorization is specifically granted in the Uniform Interstate AND International Procedure Act § 3.02(a), 1962 Handbook OF THE Commissioners ON Uniform State Laws 219, Appendix C. An analogous amendment has been embodied in 28 U.S.C. § 1782 (1964), Appendix A. It might be added that the Hague Convention, supra note 7, in its only direct reference to the examination of parties, states that a state executing letters rogatory shall not be bound to use coercion when a party, as opposed to a witness, is to be examined.
Code de Procédure Pénale art. 151.
Circular of the Minister of Justice of June 14, 1950, reprinted in Jurisclasseur DE Droit International, fasc. 405 A, at 2 (1962). The rules concerning co-operation sought by France are not necessarily the same as those relating to co-operation granted by France. See Jurisclasseur DE Droit International, fasc. 405 A, at No. 52 (1962).
See note 6 supra.
Jurisclasseur DE Droit International, fasc. 405 A, No. 37 (1962).
See Circular of June 14, 1950, supra note 108. The Circular lists the countries which require a translation of letters rogatory addressed to them.
Cf. Jurisclasseur DE Droit International, fasc. 405 A, at No. 3 (1962).
The courts always appoint the commissioner suggested by the consulate. In criminal cases, the District Attorney of New York county is sometimes willing to act as commissioner for the New York Consulate General. Otherwise, a person familiar with French procedures is generally appointed. LeLievre, in Letters Rogatory at 9, 15-19 (Grossman ed. 1956); Letter from French Consulate General, dated October 29, 1963.
Jurisclasseur DE Droit International, fasc. 405 A, at No. 55 (1962).
The confrontation provision of the Sixth Amendment of the United States Constitution has apparently not prevented the execution of letters rogatory in criminal cases by federal courts, although some state courts seem to have refused the execution of letters rogatory in criminal cases in the absence of the accused. Smit & Miller, op. cit. supra note 73, at 18 n. 48. The former New York Civil Practice Act had an express provision authorizing the taking of depositions in connection with criminal cases pending abroad. N.Y. Civ. Prac. Act § 310. The Uniform Foreign Depositions Act makes no special reference to criminal cases, but is drafted in such broad terms that they are included. Uniform Foreign Depositions Act § 1, 9B U.L.A. 43 (1957). The act is now in force in 21 states and territories. See 9B U.L.A. 26 (Supp. 1963). The language of N.Y.C.P.L.R. § 3102 (e) is substantially similar to the present language of the applicable federal statue, 28 U.S.C. § 1782 (1964), which is used in criminal as well as civil cases. Smit & Miller, op. cit. supra note 73, at 12. Before the enactment of present Section 1782, a federal court had refused to execute letters rogatory issued by a French examining magistrate (juge d’instruction) for lack of statutory authority. In re letters rogatory for Examining Magistrate of Tribunal of Versailles, France, 26 F. SUPP. 852 (D.Md. 1939). Section 3.02 of the Uniform Interstate and International Procedure Act is somewhat similar to the Uniform Foreign Deposition Act. Its drafters have indicated that the act is to apply to requests for assistance by an examining magistrate. 1962 Handbook Nat. Conf. Com. Uniform State Laws 234; Appendix C.
See Circular of June 14, 1950, supra note 108.
Ibid.
U.S. Const. Amdt. IV; cf. as to federal law, 18 U.S.C. § 2236 (1958) (search illegal unless conducted with warrant); Fed. R. Crim. P. 41 (application for warrant to be sworn to before judge or U.S. commissioner). This would seem to exclude an application for a search warrant through letters rogatory. However, articles found in the possession of a person arrested for purposes of extradition, which constitute either the fruits of the crime, or are material as evidence, may be handed over to the French authorities at the time of extradition. Extradition convention with France, supra note 12, art. 11.
See notes 77-83 supra.
Circular of June 14, 1950, supra note 108; Jurisclasseur DE Droit International, fasc. 405 A, at No. 38 (1962). These sources indicate that requests for information as to the criminal record of a person may also be addressed directly by the French ministère public to the appropriate foreign authorities.
E.g., Convention with Cameroon, supra note 11, art. 7; Conventions with the Ivory Coast and Mauretania, supra note 11, art. 3. It is to be noted, however, that the Judicial Protocol with Algeria, supra note 11, art. 27, authorizes transmittal of letters rogatory in criminal cases directly between the Ministries of Justice of the two countries. As to the as yet unratified European convention on co-operation in criminal matters, see supra note 7.
E.g., Agreement with Cameroon, supra note 11, art. 13; Agreements with the Ivory Coast and Mauretania, supra note 11, arts. 9-11; Judicial Protocol with Algeria, supra note 11, art. 32. There is no official procedure whereby a foreign governmental agency can request an American court or other official body to order a resident of the United States to appear as a witness in a foreign criminal proceeding. See 23 Ops. Att’y Gen. 112 (1900).
Jurisclasseur DE Droit International, fasc. 405 A, No. 66 (1962); Agreement with Algeria, supra note 11, art. 33; Agreement with Cameroon, supra note 11, art. 16; Agreements with the Ivory Coast and Mauretania, supra note 11, art. 13. In addition, these agreements provide that the authorities of each contracting state shall inform the authorities of the other contracting state of criminal convictions rendered on their territory against nationals of the other contracting state and persons born on its territory.
See the note by Niboyet to Bemberg v. Représ, du fisc de Buenos Aires, Trib. Seine, Feb. 24, 1949, [1949] S.I. 101.
Vedel, Droit Administratif 370 (2d ed. 1961); Waline, Droit Administratif 205-08 (8th ed. 1959).
Vedel, op. cit. supra note 125, at 372; Waline, op. cit. supra note 125, at 210, 211.
Provision for co-operation in the administrative field has been made in some agreements concluded between France and her former African possessions. See, e.g., Agreement with Cameroon, supra note 11, art. 7; Agreements with the Ivory Coast and Mauretania, supra note 11, art. 3. It should be noted that both agreements permit the execution of letters rogatory by consular or other representatives of the contracting states or delegates of such representatives, as long as only nationals are to be heard. This rule applies not only in civil, but also in criminal and administrative cases. Agreement with Cameroon, art. 8; Agreement with the Ivory Coast, art. 8.
Waline, op. cit. supra note 125, at 206.
Convention of October 18, 1946, supra note 13, arts. 8-11; cf. 1 Legislative History OF United States Tax Conventions 799 et seq., (1962), and especially the discussion of mutual assistance at 1056-75.
See note Niboyet, supra note 124.
2 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Preuve, at No. 181. But see 12 Aubry & Rau, Droit Civil 71 (6th ed. Esmein 1958).
Convention with Germany, supra note 9, art. 7 (consuls may examine their own nationals as witnesses and demand the production of documents); Convention with Great Britain, supra note 9, art. 7 (similar).
12 Aubry & Rau, op. cit. supra note 131; 2 Dalloz, op. cit. supra note 131, at No. 182. But see id. at 183 (listing a few isolated cases in which courts have held liable for damages persons who refused without good reason to produce a document needed in litigation by somebody else).
Code de Procédure Civile art. 853. As a rule, copies of notarial acts may be delivered only to parties, their heirs, and assigns. Copies of judgments and death records must be delivered to everybody. Complete copies of birth and marriage records may be delivered only to parties, certain relatives, and public officials, but summaries eliminating all reference to the person’s parents must be delivered to anybody. Persons not entitled to obtain a copy of a document as of right may, however, be authorized by the court to obtain a copy. Cf. note 135 infra.
Code de Procédure Civile arts. 839-840 (compelling notary to deliver copy of notarial document to party thereto), arts. 846-852 (procedure for court authorization to obtain copy of notarial document when application not made by party), art. 853 (liability of court clerks and public officers refusing to deliver copies of public document); Décret No. 62-921, infra note 138, art. 9 (permission to obtain complete copy of birth, death, or marriage record). Obviously, a French litigant anticipating a need for a document in the custody of an American public officer may use appropriate American procedures to secure a copy.
Code de Procédure Civile arts. 188-191.
See Code Civil art. 842.
9 Beudant, Cours DE Droit Civil Français 246, 247 (2d ed. 1953); 2 Dalloz, op. cit. supra note 131, at Nos. 169-75; cf. Décret No. 62-921 of Aug. 3, 1962, J.O. Aug. 9, 1962, p. 7918, [1962] D.L. 272, art. 3.
Code du Commerce art. 14.
Code du Commerce art. 15.
Code du Commerce art. 16.
Since the Commercial Code refers to other commercial courts and since the pertinent article 16 is part of title II of the French Commercial Code, which deals generally with the manner in which French merchants must keep their books, there may be a question whether this article permits a demand for the production of commercial books kept outside France through letters rogatory. However, French authors generally assume that such letters may be used in connection with all proof proceedings. See, e.g., Jurisclasseur DE Droit International, fasc. 583, at Nos. 7, 17 (1960).
As to possible assistance by courts in the United States, see Smit & Miller, supra note 73, at 22-25.
Code Civil art. 1318 (generally); Décret No. 62-921, supra note 138, art. 13 (copies and summaries of official birth, death, and marriage records).
Thus, a statement in a birth record to the effect that on a specified date a specified person appeared before the registrar and declared that on the day before a male child was born to him and to his lawful wife is conclusive (absent inscription de faux) as to the fact that the declaration was actually made by the person indicated at the date mentioned in the instrument, but the other recitals (date of the actual birth, legitimacy of the child), though sufficient proof of the facts mentioned, are subject to rebuttal.
See, e.g., 1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Preuve, at Nos. 229-44 (1956). The public officer must be competent to prepare the document in question and he must be acting in the district for which he has been appointed. Code Civil art. 1317.
Décret No. 62-921, supra note 138, art. 13. The rule applies not only to full copies, but also to summaries (extraits).
Code Civil art. 1334. As to the exceptions, see Code Civil art. 1335 (original lost), art. 1337 (later document repeating earlier one); 1 Dalloz, op. cit. supra note 146, at Nos. 196-216
Id. at Nos. 193-95.
As to birth, death, and marriage certificates, see Code Civil art. 47 (foreign birth, death, and marriage records prepared in the manner customary in the country involved are proof of the facts therein reported). Cf. Instruction Générale of the Ministry of Justice concerning vital statistics records of Sept. 21, 1955, J.O. Sept. 22, 1955, p. 9322, at No. 424, stating that foreign law determines the form of foreign documents and their probative value; thus, a rebuttal of recitals in such documents originating outside France should be permitted if the country of origin of the document permits the rebuttal of such recitals without resort to any special procedure (inscription de faux). For examples of applications of this rule, see, e.g., Soc. Técalémit v. Cie française pour l’exploitation des procédés Thomson-Houston, Cass. Civ., Feb. 1, 1944, [1944] S. 1. 108, 73-76 Clunet 50 (1949) (document containing patent assignment prepared in U.S. usable in France to show date of assignment, though French rules concerning enregistrement of contracts (cf. Code Civil art. 1328) not complied with); Vorschuss-Verein Buehl, Trib. Strasbourg, Dec. 28, 1931, 59 Clunet 1013 (1932) (although French law requires a document prepared by a notaire for cancellation of mortgage, a document prepared in Germany in German form — i.e., prepared by the parties and signed by them, but authenticated by a German notary — may be used in France).
As a rule, the law of the place where the document has been prepared will also determine its admissibility. See, e.g., Consorts Justomond v. époux Delbreil, Cour d’Appel Bordeaux, Dec. 21, 1886, [1887] D.2. 163 (official birth or marriage certificates, which are admissible evidence only in purely domestic French situation not required in proceeding involving person who had lived in Louisiana; evidence usable in Louisiana to prove birth or marriage may be used). Accord, Dussauce v. Dussauce, Cour d’Appel Paris, Jan. 20, 1873, [1873] D. 2. 59. At times, however, the law applicable to the substance of the transaction (if different), or the law of the forum may have a bearing on the admissibility of evidence in France. See, e.g., Batiffol at 460, 533, 809-14; cf. Société les Films Roger Richebé v. Société Roy Export Co., Cass. Civ. (1st sect.), May 28, 1963, 90 Clunet 1004 (1963) (assignment of copyright in American film valid if American form of copyright assigment used, though assignment made in Paris).
See Code Civil art. 47, most recently amended by Décret No. 62-921, supra note 138.
See, e.g., The Rome agreement on the recognition of illegitimate children, supra note 8, which provides that a recognition made by the father in one of the contracting countries shall have the same effect in another contracting country as a recognition made there.
Décret No. 46-2390, supra note 3, authorizes, but does not require, French consuls to authenticate documents. An older decree dealing with this topic was abrogated by the 1946 Décret. See note Sialelli to Dornen Erika v. Batzenschlager, Trib. civ. Blida, March 13, 1957, 85 Clunet 128 (1958).
Décret No. 46-2390, supra note 3, art. 3.
Information kindly supplied by the French Consulate General in New York by letter dated October 29, 1963.
Jurisclasseur DE Droit International, fasc. 544, at No. 98 (1960) (discussing vital statistics records, but apparently applicable generally); Décret No. 46-2390, supra note 3, art. 3 (requirement that position of official be stated). French law does not prescribe the particular form an authentication (légalisation) must take.
Décret No. 46-2390, supra note 3, art. 4.
Supplement to the Instruction Générale of the Minister of Justice concerning vital statistics records, issued April 12, 1962, J.O. May 13, 1962, p. 4741, reprinted in Jurisclasseur DE Droit International, fasc. 544, at p. 1 (Supp. 2-1963). Nos. 525, 526. This seems to be a general rule, although the circular speaks only of vital statistics records.
E.g., de Bioncourt, Cass. Req., June 28, 1937, 64 Clunet 807 (1937) (adoption judgment issued in Russia before Revolution accepted without authentication when authentication seemed difficult or impossible, and there was some proof of genuineness of document). See also cases mentioned in the note Sialelli to Dornen Erika v. Batzenschlager, supra note 154, and 1 Dalloz, Répertoire DE Procédure Civile, Actes de L’Etat Civil, at No. 90 (1955).
1962 Supplement to Instruction Générale, supra note 159, at No. 528.
Jurisclasseur DE Droit International, fasc. 544, at No. 107 (1960). As to the authority of French consulates to prepare and attest translations, see Décret No. 46-2390, supra note 3, art. 6. At least as to vital statistics records, translation of documents by the French consulate seems to be the normal procedure.
Jurisclasseur DE Droit International, fasc. 544, at No. 110; Guilhot, Le régime fiscal des actes de Vètat civil dressés à l’étranger ou concernant des étrangers, 64 Clunet 244 (1937). The stamp tax is based on the number of pages in the document and the size of the paper. Documents containing a business transaction may, in addition, become subject to the much more burdensome enregistrement tax.
Agreements of Sept. 26, and Sept. 27, 1956, supra note 8. As a result, birth, death, and marriage records from Belgium, (West) Germany, Holland, Luxemburg, Switzerland, and Turkey may be used in France without authentication. See 1962 Supplement to Instruction Générale, supra note 159, at No. 511. Authentication is also unnecessary for all copies of declarations of paternity issued pursuant to the multilateral convention concerning the recognition of illegitimate children, supra note 8, art. 5.
por a list of countries concerned, see 1962 Supplement to the Instruction Générale, supra note 159, at No. 527. The Agreement with Great Britain, supra note 9, provides for the mutual recognition, without authentication, of vital statistics records, patent office records, and other public documents and judgments if they are signed by the appropriate public official and bear the seal of the office or court concerned. Other bilateral treaties usually exempt only vital statistics records from the requirement of authentication. See, e.g., Convention with Switzerland of August 26, 1926, published by Décret of Oct. 20, 1926, J.O. Oct. 26, 1926, 54 Clunet 249 (1927). Similar provisions can be found in many of the agreements between France and her former colonies, mentioned supra note 11. See, e.g., Agreement between France and Cameroon, art. 23, and the Agreement with the Ivory Coast, art. 21. The Agreement with Czechoslovakia, J.O. Feb. 12, 1928, 58 Clunet 550 (1931), art. 15, provides for a simplified form of authentication: Documents need not be authenticated by a consul; authentication by a court or a member of the central administration of the country where the document has been issued is sufficient.
Such agreements usually provide that each contracting state will periodically transmit to the other contracting state information concerning births, deaths, and marriages of nationals of that state. They may also provide that registrars of vital statistics shall promptly inform the appropriate consul of the other contracting state of the death of any person having the consul’s nationality. There may be further clauses concerning the free delivery of birth, death, and marriage certificates to governmental organizations of the other state and concerning national treatment of indigent nationals of the other state as far as remission of fees payable on account of birth, death, and marriage certificates is concerned. Cf. Agreements, supra note 165. A provision concerning the free delivery of birth, death, and marriage certificates is also contained in the Hague convention, supra note 7, art. 25. For French administrative rules on these matters, see Instruction Générale, supra note 150, at No. 384 and 1962 Supplement, supra note 159, at No. 510.
The rule requiring the pleading of foreign law is not very burdensome, since French pleadings (conclusions) are not limited to one stage of the proceedings. It should be noted that, as a general rule, a court may deal only with contentions of the parties made in the pleadings. 1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Conclusions, No. 63 (1955).
E.g., Batiffol 385, 386.
For some recent cases, see Dame Bertoncini v. Bertoncini, Cass. Civ. (1st sect.), July 11, 1961,51 Rev. CR. D.I.P. 124 (1962), 90 Clunet 132 (1963); Allemes V. Demoiselle Auzou, Cour d’Appel Paris, April 6, 1962, [1962] D.J. 617, 90 Clunet 134 (1963), 52 Rev. CR. D.I.P. 364 (1963) (note Batiffol). On the basis of dictum appearing in Comp, algérienne de crédit et de banque, infra note 171, Batiffol has suggested in a brief note that perhaps a court has a duty to take judicial notice of foreign law if a question of public policy is involved. There is also dictum in the Allemes case, supra, implying that a court must take judicial notice of foreign law in case of fraud. But see Bisbal v. Dame Bisbal, infra note 170.
E.g., Belaieff v. Gillet, Cass. Civ., Jan. 7, 1929, 56 Clunet 1948 (1929); Bisbal v. Dame Bisbal, Cass. Civ. (1st sect.), May 12, 1959, 49 Rev. Cr. D.I.P. 62 (1960) (critical note Batiffol); Allemes v. Demoiselle Auzou, supra note 169; cf. Batiffol 391, 392. In Bisbal, two Spanish nationals were able to obtain a divorce in France by not pleading Spanish law, although under French conflict of laws rules nationality governs the availability of divorce and Spanish law prohibits divorce.
For recent cases in which judicial notice was taken, see Comp, algérienne de crédit et de banque v. Chemouny, Cass. Civ. (1st sect.), March 2, 1960, 49 Rev. CR. D.I.P. 97 (1960) (note H.B.), 88 Clunet 408 (1961); Hasenpout v. Veuve Outkewicz, Cour d’Appel Paris, March 18, 1954, 45 Rev. CR. D.I.P. 116 (1955) (note Batiffol). See also cases cited in Batiffol at 391; Chevallier, Remarques sur l’utilisation par le juge de ses informations personnelles, 61 Rev. Trim. DR. Civ. 5, at 9-10 (1962). For a general discussion, see Giuliano, Le Traitement du droit étranger dans le procès civil dans les systèmes juridiques continentaux, 14 Revue Internationale DE Droit Comparé 5 (1962).
See, e.g., Cie Naviera Baracaldesa v. Lloyd de France, Trib. Seine, Jan. 18, 1929, 56 Clunet 1056 (1929). The practice has been criticized because of the difficulty of impeaching the qualifications of the person who prepared the certificat de coutume. Cf. Batiffol at 385 n. 8. Ordinarily, each party will submit a certificat de coutume, leaving it to the court to resolve any conflict.
See, e.g., Montefiore v. Colonie du Congo Belge, Cass. Civ. (1st sect.), Nov. 21, 1961, 89 Clunet 687 (1962) (Belgian statute); Delaume, American-French Private International Law 171 (2d ed. 1961).
Epoux Landauer v. Corniglion-Molinier, Cass. Civ., April 26, 1950, 77 Clunet 1192 (1950) (French text on American law as proof of matrimonial property law of Indiana).
Soc. Algérienne des pétroles Mory v. Soc. Emerson Steamship Corp., Cour d’Appel Rennes, February 6, 1962, 90 Clunet 408 (1963). The case involved the priorities of numerous creditors — French, American, and others — in a fund resulting from the sale, under order of a French court, of an American tanker subject to an American ship mortgage and various other liens. The three impartial experts were given the order to collect all pertinent documents, receive the declarations of the parties, investigate the applicable American law, determine the validity and effect of the documents (mainly the mortgage) in the light of that law, prepare a report on their findings, and file it. The case well illustrates the scope of a French expertise.
Batiffol 393-97.
Ibid.; Dame Barbara v. Messina, Cass. Civ., Dec. 7, 1949, 77 Clunet 176 (1950); De Marchi della Costa v. De Bagneux, Cass. Civ., March 7, 1938, 65 Clunet 784 (1938); Guez v. Ben Attar, Cass. Req., November 7, 1933, 62 Clunet 88 (1935).
Epoux Guinguèn v. Dlle Falk, Cass. Ass. Plén., Dec. 20, 1950, [1951] J.C.P. 2.6058, 78 Clunet 176 (1951).
Montefiore v. Colonie du Congo Belge, supra note 173.
See note Goldman, supra note 173. For another evaluation, see Franceskakis, La loi étrangère à la Cour de Cassation, [1963] D. Chr. 7. Two Cour de Cassation decisions following Montefiore are somewhat inconclusive. Chemouny v. dame Krieff, Cass. Civ. (1st sect.), Feb. 19, 1963, 90 Clunet 1016 (1963) (note Malaurie) (lower court may freely interpret foreign law; but the Cour de Cassation noted that foreign law had not been distorted).
See, e.g., the Agreement with Czechoslovakia, supra note 165, art. 16, stating that the Ministries of Justice of the two countries shall, if requested through diplomatic channels, certify whether a statute mentioned in the request is still in force.
See generally Batiffol 850; cf. Cie Naviera Baracaldesa v. Lloyd de France, Trib. Seine, Jan. 18, 1929, 56 Clunet 1056 (1929) (default judgment obtained in Spain after service by publication not recognized in France, since service by publication not adequate method of notifying a defendant whose actual address is known). See also Denton v. Hall, Cour d’Appel Toulouse, Jan. 29, 1872, [1872] D. 2.236; Shepard’s Bush Exhibition v. Very, Cour d’Appel Paris, March 1, 1917, 44 Clunet 1405 (1917) (English judgment based on service by private individual in France enforced.)
Huissiers are not paid by the government, but by the parties. However, like notaries, they are officially appointed by the French governemnt, and statements made by them in documents relating to their official activities, such as returns on service of papers, have the almost conclusive effect of other official documents. On huissiers and service of process in domestic French cases, see 1 Solus & Perrot 307-47, 889-910, and Code de Procédure Civile arts. 61-71. In purely domestic cases, personal service on the defendant, while having certain advantages if the defendant defaults (Code de Procédure Civile arts. 158, 158 bis), is not required: Service is sufficient if the huissier leaves the paper with a relative or servant at the domicile of the person to be served; no attempt at personal service need be made.
Code de Procédure Civile art. 1033; 1 Solus & Perrot at 309, 310. A petition for review (pourvoi) addressed to the Cour de Cassation is not formally served on the other side, but filed in the court clerk’s office. Law No. 47-1366 of July 23, 1947, J.O. July 24, 1947, p. 7142, [1947] D.L. 275, arts. 15, 17, 36. The same procedure is used before the administrative courts. Vedel, Droit Administratif at 370 (2d ed. 1961).
Documents exchanged by counsel are called actes d’avoué à avoué. They include mainly various types of pleadings (conclusions) and notices.
Jurisclasseur DE Droit International, fasc. 583, at Nos. 37-39 (1960).
On service under international agreements, see Jurisclasseur DE Droit International, fasc. 589 B, at No. 23 (1961). These agreements usually try to save time by permitting the transmittal of documents directly from the foreign court to the appropriate French ministère public. See, e.g., Convention with the German Federal Republic, supra note 9, art. 1.
Acte judiciaire et extra-judiciaire, in 1 DE Lapradelle & Niboyet, Répertoire DE Droit International at Nos. 67, 68 (1929).
Jurisclasseur DE Droit International, fasc. 583, at Nos. 39 (cost), 41 (speed) (1960).
The Hague Convention, supra note 7, art. 1, requires that requests for service indicate the names of the parties, the capacity in which they act, the authority which has issued the paper to be served, the nature of the paper, and the address of the recipient.
Letters rogatory may be used only in connection with proof proceedings. See 1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Commission Rogatoire, Nos. 6-10 (1955).
Jurisclasseur DE Droit International, fasc. 583, at No. 41 (1960).
Jurisclasseur DE Droit International, fasc. 589 B, at No. 25 (1961).
See, e.g., Circular of the Ministry of Justice of May 20, 1925, 1925 Bull. Min. Justice 30, 54 Clunet 241 (1927). The circular deals specifically with relations between France and Austria, but seems to state a rule of general applicability. Presumably, a translation attested by a French consulate in the country of origin of the paper would also be satisfactory. The rules indicated are sometimes modified by treaty. Thus, in the case of documents coming from Germany, the French authorities will prepare a translation, but the cost of translation must be reimbursed. Convention with Germany, supra note 9, art. 3. The huissier’s fee will run to around 17 F. ($ 3.50) and the stamp tax is 2.50 F. ($ 0.50) per page of original and copy, but excluding the duplicate original, for which no stamp tax is payable. All stamps are now pasted on the original, which the huissier files in his office. Cf. 1 Solus & Perrot at 320. Since the stamp tax varies with the size of paper, it is advisable to use standard letter size paper rather than American legal size paper. The enregistrement tax is F. 5 (about $ 1.) See note 20 supra.
1 Solus & Perrot at 312.
Jurisclasseur DE Droit International, fasc. 583, at No. 39 (1960).
Convention with Great Britain, supra note 9, arts. 3, 4.
See Lerebours-Pigeonnière, Droit International Privé 459 (7th ed. 1959).
See, e.g., Protocol with Algeria, supra note 11, art. 25; Convention with Cameroon, supra note 11, art. 5; Convention with the Ivory Coast, supra note 11, art. 28.
Hague Convention, supra note 7, art. 6. As to other agreements providing expressly for service by mail, see Jurisclasseur DE Droit International, fasc. 589 B, at No. 27 (1961).
Société S.E.O. v. Pons, Trib. Gde. Inst. Seine, Dec. 8, 1959, 87 Clunet 1068 (1960); cf. S.A. Wouters et Cie v. Robert-Bérin, Trib. Gde. Inst. Seine, Dec. 12, 1961, 89 Clunet 1032 (1962).
Jurisclasseur DE Droit International, fasc. 589 B, at No. 26 (1961). See also Agreements listed supra note 33.
See note 6 supra.
Law of March 10, 1927, supra note 6, arts. 9, 10, 31.
Law of March 10, 1927, supra note 6, art. 1; Kirkwood, Conseil d’Etat, May 30, 1952, 80 Clunet 122 (1953).
See Jurisclasseur DE Droit International, fasc. 405 A, at No. 26 (1962). There would be an exception if a treaty were to make extradition for political crimes possible. Id. at No. 30.
See, e.g., Blackmer v. United States, 284 U.S. 421 (1932).
See, e.g., Convention with Germany, supra note 9, art. 7 (consul executing letters rogatory to state in notice to witnesses that no compulsion is used); cf. Circular of Minister of Justice of May 20, 1925, 1925 Bull. Min. Justice 30, 54 Clunet 241 (1927) (Austrian consuls serving process in France may not use compulsion).
See, e.g., Protocol with Algeria, supra note 11, art. 21 (direct transmittal to ministère public); Agreement with Cameroon, supra note 11, art. 1 (same); Convention with Maure-tania, supra note 11, art. 24 (transmittal between ministries of justice).
There is authority to the effect that the taking of testimony by private persons for use in litigation pending outside France may be a violation of French sovereignty. Japiot, Commission Rogatoire, in 4 DE Lapradelle & Niboyet, Répertoire DE Droit International at 73 (1929); Gavalda, Les commissions rogatoires internationales en matière civile et commerciale, 53 Rev. CR. D.I.P. 15, 33 (1964). However, there appears to be no recorded instance in which the French government has objected to the taking of depositions before a private individual. The French government does not object to the taking of depositions by foreign consuls at least when, as in the case of the United States, French consuls are given similar rights. Gavalda, supra at 32 n. 2; Jurisclasseur DE Droit International, fasc. 589B, at No. 44 (1961). At one time, though, the French Ministry of Justice seems to have taken the position that consuls may not take depositions in France, absent a treaty. Japiot, supra at 79. In the ten-month period from January through October 1963, the American Embassy in Paris took 29 depositions of French as well as American nationals. The French government has voiced no objections. Information supplied by the American Embassy in Paris by letter dated October 31, 1963.
See Convention, supra note 14, art. VI.
See note 210 supra.
Cf. People v. Lothringer, N.Y.LJ. Aug. 20, 1963, p. 8 (Sup. Ct. Queens Cy.) (French authorities refused to permit officials involved in extradition proceeding to give testimony before the United States consul pursuant to order of New York court).
See Les auteurs d’une déposition mensongère faite en France sous la forme d’un affidavit devant le consul des Etats Unis ou devant un notaire français peuvent-ils etre poursuivis en France par la juridiction repressive? 57 Clunet 254 (1930); cf. Jones, Letters Rogatory in Federal Practice, in Letters Rogatory 73, 76 (Grossman ed. 1956).
See, e.g., treaties mentioned in note 9 supra.
Gavilloux v. Dlle H., Trib. Gde Inst. Seine, March 29, 1960, [1961] J.C.P. II 12161 (no execution of letters rogatory issued by Swiss court not competent under French-Swiss agreement on judicial competence).
The scope of this restriction is not clear. In B. v. Z., Trib. civ. Boulogne, Aug. 14, 1908, 37 Clunet 818 (1910), a French court refused to execute letters rogatory in a paternity case on the ground that paternity actions violated French public policy. Less than a year later, another court came to the oppositie conclusion. Ramsdorf, Trib. civ. St. Malo, July 15 1909, 38 Clunet 190 (1911). Since French internal restrictions on paternity actions were eased in 1912, it is quite unlikely that a French court would now refuse to execute letters rogatory in filiation proceedings. Cf. Batiffol at 809 (public policy exception to have very limited application in connection with execution of letters rogatory).
Jurisclasseur DE Droit International, fasc. 589 B, at no. 47 (1961).
On the influence of French nationality on competence, see Code Civil arts. 14, 15. On these provisions, see generally Batiffol at 755-73, 844-46.
As to applicable American procedures, see Smit & Miller, op. cit. supra note 73, at 52-54.
1 Dalloz, Répertoire DE Procédure Civile ET Commerciale, Commission Rogatoire, No. 61 (1955); Jurisclasseur DE Droit International, fasc. 589 B, at No. 46 (1961). Some control is also exercised by the Ministry of Foreign Affairs and the Ministry of Justice. The translation should ordinarily be provided by the foreign court, but if letters rogatory are submitted to the French Ministry of Foreign Affairs without a translation, the latter will sometimes supply one.
E.g., Bemberg v. Représentant du Fisc de Buenos Aires, Trib. civ. Seine, Feb. 24, 1949, 39 Rev. Cr. D.I.P. 627 (1950) (note Loussouarn), [1949] S. 2. 101 (note Niboyet) (court refused to examine books of French company as requested by Argentine fiscal authorities because use of letters rogatory for tax purposes would violate French public policy).
For an example of a référé proceeding, see Bemberg v. Représentant du Fisc de Buenos Aires, supra note 222. For an example of a plenary action, see Gavilloux v. Dlle H., supra note 216. Some treaties provide that difficulties arising in execution of letters rogatory shall be settled diplomatically.
Go Yet, LE Ministère Public 254 (3d ed. 1955). For a rare case in which an avoué submitted a letter rogatory, see Ramsdorf, supra note 217.
See letter of October 31, 1963, supra note 210.
Cf. Jurisclasseur DE Droit International, fasc. 589 B, at No. 48 (1961). On measures of coercion against recalcitrant witnesses in civil cases, see Code de Procédure Civile art. 269. These measures were strengthened in 1958.
Code Pénal art. 378.
This procedure is unknown under French law. Since parties may be examined (but not put under oath) in the comparution personnelle procedure and may be asked to take the so-called decisory oath, the examination of parties as witnesses would probably not be considered a violation of public policy. French courts will also ask a party to take the decisory oath if requested to do so by letters rogatory. For an example, see Ramsdorf, supra note 217.
As to the form of the oath in civil cases, see Code de Procédure Civile art. 283. The penalty for perjury in civil and administrative cases is imprisonment from two to five years and a fine from F. 500 (about $ 100.) to F. 7.500 (about % 1500). The imprisonment is five to ten years if the witness has accepted a bribe. Code Pénal arts. 363, 364. In addition, persons convicted of perjury may be deprived of their “civil rights” (right to vote, bear arms, and the like) for a period from fine to ten years. Code Pénal arts. 42, 362.
Jurisclasseur DE Droit International, fasc. 583, at No. 21 (1960).
Code de Procédure Civile art. 265. It should be noted that, with special permission, a foreign attorney may appear in a French court if he is assisted by a French avocat.
Jurisclasseur DE Droit International, fasc. 589 B, at No. 50 (1961); cf. Code de Procedure Civile art. 279. The witness fee is F. 5.50 (about $ 1.50). Travel expenses may also have to be paid. Code de Procédure Pénale arts. R. 129-138.
Jurisclasseur DE Droit International, fasc. 589 B, at No. 48 (1961).
See, e.g., Hague Convention, supra note 7, art. 16.
See text at note 99 supra.
Mainly Law of March 10, 1927, supra note 6, art. 30.
Ibid.
Law of March 10, 1927, supra note 6, art. 9.
Law of March 10, 1927, supra note 6, art. 30.
Law of March 10, 1927, supra note 6, art. 10.
Jurisclasseur DE Droit International, fasc. 405 A, at Nos. 37, 61 (1962).
Law of March 10, 1927, supra note 6, art. 30. Unless the French Ministry of Foreign Affairs has been notified, executed letters rogatory will apparently not be returned.
It provides that consuls may take the “declaration” of their nationals without restricting this to any particular type of case. Consular Convention of Feb. 23, 1853, supra note 14, art. VI.
Law of March 10, 1927, supra note 6, art. 34 (the French government reserves the right to refuse “if particular considerations warrant”).
Law of March 10, 1927, supra note 6, art. 33.
Jurisclasseur DE Droit International, fasc. 405 A, at No. 66 (1962).
Bemberg v. Représentant du Fisc de Buenos Aires, Trib. civ. Seine, Feb. 24, 1949, 39 Rev. CR. D.I.P. 672 (1950), [1949] S.2. 101 (note Niboyet).
Niboyet, supra note 247.
Code Pénal art. 378.
Code Pénal arts. 75-78 (forbidding disclosure of secrets relating to national defense).
See Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-54 (1961).
The Agreement with Great Britain, supra note 9 art. 7, expressly sanctions this practice.
Extradition Convention of January 6, 1909, supra note 12, art. 11. The Law of March 10, 1927, supra note 6, art. 29, likewise authorizes the transmittal of tangible objects seized in connection with the arrest of the person to be extradited. The chambre d’accusation (special panel dealing with certain preliminary matters in cases of serious crimes) of the regional cour d’appel must approve the transmittal. Tangible evidence seized in connection with a demand for extradition may be transmitted to a foreign government even if the extradition becomes impossible-for instance, because the person to be extradited has died or escaped.
Law of March 10, 1927, supra note 6, art. 32.
Jurisclasseur DE Droit International, fasc. 405 A, at No. 55 (1962).
Bemberg v. Représentant du Fisc de Buenos Aires, supra note 247. But see, as to cooperation between United States and French taxing authorities, text at notes 247-248 supra.
The rules concerning the manner in which birth, death, and marriage records are kept are now contained in Décret No. 62-921, supra note 138, and in Code Civil arts. 34-39. French consular officials in foreign countries act as officiers de l’état civil for their nationals. Entries must usually be made in the registers of the commune (municipality) where the event to be recorded took place, but certain entries, which cannot conveniently be made elsewhere, are made in the registers of the first arrondissement in Paris.
For a brief description of actes de Vétat civil in English, see Amos & Walton, Introduction TO French Law 37 (2d ed. 1963). On these records generally, see Code Civil art. 78; Décret No. 60-285 of March 28, 1960, J.O. March 31, 1960, p. 2969, [1960] D.L. 121. False statements made to officers de Vétat civil or false entries made by such officers are sanctioned by severe punishment.
Cf. Amos & Walton, op. cit. supra note 258, at 62; Code Civil art. 70.
Code Civil arts. 76 (marriage), 79 (death), 251 (divorce).
Code Civil art. 76. Standard community property rules apply to couples who have not entered into an antenuptial agreement (contrat de marriage). Modification of the contract after marriage is not possible. See Code Civil arts. 1387-1398.
Conservateur des hypothèques means, literally, preserver of mortgages. Originally, only mortgages were recorded in France. For a brief description of the French system, see Amos & Walton, op. cit. supra note 258, at 106-09, and 1 Colin & Capitant, Traité DE Droit Civil 7-14 (11 th ed. and Supp. 1955). The German system, somewhat modified, is in force in the Alsace-Lorraine region of France.
The inscription (recording of a summary) of liens and mortgages is governed principally by Code Civil arts. 2146-2154. The general rules concerning the French land record system and the transcription (recording, or rather filing and indexing) of the entire documents transferring ownership or similar interests are contained in Décret No. 55-22 of Jan. 4, 1955, J.O. Jan. 27, 1955, p. 346, [1955] D.L. 44, since amended in details.
Décret No. 55-22, supra note 263, art. 1.
Décret No. 55-22, supra note 263, art. 4, as amended by Décret No. 59-89 of Jan. 7, 1959, J.O. Jan. 8, 1959, p. 579, [1959] D.L. 239. As to mortages, see Code Civil arts. 2172, 2128. When documents prepared by foreign notaries are involved, the paper actually recorded is a copy of the foreign original prepared by the notary with whom the original has been deposited. It should be remembered that in foreign countries French consular officers may exercise notarial functions. See Décret No. 62-1461, supra note 3.
Décret No. 58-1355 of Dec. 27, 1958, J.O. Dec. 29, 1958, p. 11971, [1959] D.L. 137, arts. 1-3. Physical persons must register in the clerks’ office of the court competent for the district in which they have their main establishment; companies (sociétés) where their siège social, i.e., their administrative center, is located. Supplemental registration is required in each district in which branch establishments are located. Décret No. 58-1355, supra art. 5.
These include information on the identity, nationality, capacity of the registrant, and the matrimonial property regime under which he is married, the name under which the enterprise is operated, its location and “‖ all other elements of the legal position of the registrant, and of his commercial activities which third parties need to know in order to deal with him in all security or the publication of which is in the general interest.” Décret No. 58-1355, supra note 266, art. 6, More detailed specifications are contained in regulations supplementing the Décret. The commercial register indicates (among other things) who has a general power to bind the firm involved.
Law of July 24, 1867, on sociétés par actions, [1867] Bull, DES Lois NO. 45328, [1867] D. 4. 98, arts. 55-64; Law of March 7, 1925, as amended, art. 12, on sociétés à responsibilité limitée, J.O. March 8, 1925, [1921-1925] S. Lois Annot. 1801. The requirement of filing of actes de société applies only to sociétés anonymes and sociétés à responsabilité limitée, which correspond rather closely to American corporations, not to other types of enterprises (including partnerships) known collectively as sociétés. Cf. Amos & Walton, op. cit. supra 258, at 51-52.
Décret No. 58-1355, supra note 266, art. 2.
Law No. 51-444 of April 19, 1951, J.O. April 20, 1951, p. 3964, [1951] D.L. 104, as supplemented by Décret No. 51-1469 of Dec. 22, 1951, J.O. Dec. 27, 1951, p. 12934, [1952] D.L. 29. French legislation on designs is reprinted in France, in 1 Design Laws AND Treaties OF THE World (1960).
Code de Proceduré Civile art. 1040.
Code de Procédure Civile art. 79.
This register is a card file of all convictions. Code de Procédure Pénale arts. 768-73, R. 62-R. 72. The central file in Paris also lists convictions of persons without known place of birth or whose identity is doubtful.
Law on Notaries of the 25 ventôse XI, art. 20, reprinted in Code Civil at 497 (61st ed. Dalloz 1962). Similarly, huissiers (process servers) keep the originals of documents they serve.
Décret No. 62-921, supra note 138, art. 9. Application to obtain a complete copy must be made to the judge of the local tribunal d’instance; if he refuses, it may be referred to the presiding judge of the competent tribunal de grande instance using the abbreviated, so-called référé, procedure.
Décret No. 62-921, supra note 138, art. 10.
Décret No. 62-921, supra note 138, art. 1.
Décret No. 62-921, supra note 138, art. 9.
Décret No. 54-37 of Jan. 6, 1954, J.O. Jan. 14, 1954, p. 565, [1954] D.L. 78, art. 23. These may be obtained either from the clerk of the competent commercial court (for enterprises in his district) or from the Institut national de la propriété industrielle for enterprises anywhere in France. However, generally speaking, no information on enterprises registered before 1953 can be obtained from the latter office.
Code de Procédure Civile art. 1040.
Code de Procédure Pénale arts. R. 155, R. 156. In criminal cases, even the parties need the approval of the procureur to obtain copies of documents other than judgments and the initial complaint.
Code de Procédure Pénale arts. 774-777, R. 76-R. 84.
See notes 134-135 supra.
Law of May 2, 1861, [1861] D.4. 54.
Cf. Goyet, LE Ministère Public 49 (3d ed. 1955).
The Journal Officiel has been published since 1871. Until 1931, statutes were also officially reprinted in the Bulletin DES Lois. For a listing of the various official publications which contained French statutes from 1799 to date, see Szladits, A Guide TO Foreign Legal Materials 56 n. 37 (1959).
See Code Civil ii (61st ed. Dalloz 1962).
The reorganization of the official reports of the Cour de Cassation, leading to the publication of all civil cases, was effected by Law No. 47-1366 of July 23, 1947, J.O. July 24, 1947, p. 7142, [1947] D.L. 275, art. 62.
On French law reports, see Szladits, op. cit. supra note 286, at 61-77.
The most important general publishers are Dalloz, Sirey, Jurisclasseur Périodique (also known as Semaine Juridique), and Gazette du Palais. Most of these publish a periodical service which reports new legislation and new court decisions on a weekly or monthly bases and a collection of current (often annotated) statutes. See Szladits, op. cit. supra note 286. Some publications cover only special fields. Thus, many cases as well as other material on public and private international law are reprinted (sometimes with an English translation) in the Journal DU Droit International (also known as Clunet), and many private international law decisions and related materials are to be found in the Revue Critique DE Droit International Privé.
Décret No. 46-2390, supra note 3, art. 7.
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Herzog, P., Smit, H. (1965). International Co-Operation in Litigation: France. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_7
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