SALIENT FEATURES OF JUDICIAL SYSTEM IN FRANCE
1. Subordinate
Position of Judiciary:
The principle of separation of powers did not find favor
with the framers of the French Constitution. As such, in the Constitution of
the Fifth Republic, Judiciary has been given a subordinate position,
subordinate to the executive. The composition of the Judiciary has been left in
the hands of the Government. Judges in France work under the Minister of the
Judicial Department. However, after the creation of the Higher Council of
Magistracy and a special statute for the membership of the judicial bodies, the
independence of the Judiciary has been somewhat strengthened.
2. Codified
Laws:
A special feature of the French Judicial System is the
existence of laws in the form of codes. The credit for the codification of all
the laws goes to Napoleon for it was he who ordered the codification of all
laws of France.
The
law codes of France are of the following five types:
1. Penal
Code,
2. Civil
Code,
3.
Commercial Code,
4.
Criminal Procedure Code, and
5. Civil
Procedure Code.
3. No
Separate Courts for Civil and Criminal Cases:
Unlike the practice being followed in India and Britain
where separate courts for civil and criminal cases exist, in France each court
can hear both civil and criminal cases. Only one court, the Cassation Court is
an exception to this rule.
4. Principle of
College-ability:
Another
feature of the French Judicial System is that here the system of hearing cases
by a minimum of three judges prevails. In every court, several judges
collectively hear the case and give judgement. This is known as the principle
of college-ability. This principle has been accepted in view of the French
belief that one judge and not a number of them can be corrupted.
5. Difference
between Ordinary Laws and Administrative Laws:
In sharp contrast to the practice prevailing in India
and Britain, two categories of laws operate in France-one for ordinary citizens
and the other for government servants. Ordinary citizens are under ordinary
laws and ordinary courts while the civil servants are under the Administrative
law and the administrative courts. Thus, in France, a distinction is made
between ordinary citizens and government servants. Dicey believes that this
constitutes a violation of the principle of the Rule of Law.
6.
Difference between Ordinary (Judicial) Courts and Administrative Courts:
Corresponding to the existence of two separate systems
of laws for ordinary citizens and administrative officials, there are in
operation two types of courts—Ordinary courts and Administrative Courts.
Ordinary courts decide cases involving ordinary citizens and Administrative
Courts decide cases involving government servants. The former apply ordinary
law and the latter administrative law.
7. Right
of Judicial Review with the Constitutional Council:
Contrary to the practice prevailing in India and
America, the right of judicial review has not been given to regular courts in
France. On the other hand, this right has been given to a special council—the
Constitutional Council. This Council is a semi-executive and semi-judicial
body.
8. Special
Courts:
Another
feature of the French judicial system is that there exist some special courts
which resolve several specific disputes through compromises and agreements.
These can be compared to the Arbitration Tribunals operating in other
countries.
These
special courts include:
(i) The
Courts of the Justices of Peace,
(ii)
Industrial Disputes Tribunals,
(iii)
Commercial Tribunals, and such other courts.
9. Judgeship
is a Profession:
In France, judges are not appointed from amongst the
lawyers. A student of Law in France has to choose for himself whether he would
like to become a lawyer or to embrace the profession of a judge. Judgeship is a
separate profession in France. For the appointment of judges, there exists a
Higher or Superior Council of Judiciary.
10.
Standing Judiciary:
A novel feature of the French Judiciary has been the
institution of Standing Judiciary. Standing Judiciary is a department of the
State Attorney which is a part of the Law Department. Standing Judiciary
consists of civil officers who strictly follow the orders and directions of the
Law Ministry and the State Attorney.
It
represents the interests of the state. In fact, officers of the Standing
Judiciary can be favorably compared with the public prosecutors of India or in
some ways; they can be compared with the Procurators who used to work under the
constitution of the erstwhile USSR. From a study of the features mentioned
above, it becomes apparent that the French judicial system is a unique system