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THEMES
Legal order- Organisation of justice
- Legal professions
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- Jurisdiction of the courts
- Bringing a case to court
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- Applicable law
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Taking of evidence and mode of proof- Interim and precautionary measures
- Enforcement of judgements
- Simplified and accelerated procedures
- Divorce
- Parental responsibility
- Maintenance claims
- Bankruptcy
- Alternative dispute resolution
- Compensation to crime victims
- Automatic processing
Taking of evidence and mode of proof - France
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I. The burden of proof
1.
a) What are the rules that apply with regard to the burden of proof?
b) Do rules exist that give exemption from providing the proof of certain facts? Under what circumstances? Can one provide evidence contrary to these presumptions?
In certain cases, there are presumptions that release a person who has to prove a fact that is impossible or difficult to establish from the obligation to provide evidence. In general, evidence may be provided to rebut these presumptions. For instance, where a child is born during a marriage, the mother’s husband is presumed to be the father. But an action may be brought to contest paternity.
In rarer cases, presumptions are declared juris et de jure and no evidence to the contrary is admissible.
2. To what extent must the court be convinced of a fact in order to base its judgement on the existence of this fact?
The court may only base its decision on proven or uncontested facts.
II. Obtaining proof
3. Can the implementation of preparatory inquiries only take place at the request of one of the parties, or may the judge, in certain cases, take the initiative?
Preparatory inquiries may be ordered by the judge at the request of one of the parties, but the judge may also take the initiative.
4.
a) What are the next steps if the request for preparatory inquiries made by one of the parties is approved by the judge?
If the judge orders preparatory inquiries to be made at the request of one of the parties, the court office informs the appointed technician of the scope of his mission; the latter then calls on the parties to be present at all his subsequent operations. If expert testimony is required, this will not begin until the relevant party has handed over a sum of money (a deposit) to be decided by the judge, which will guarantee payment for the expert. All preparatory inquiries are carried out in the presence of the parties.
b) In what circumstances may the request for preparatory inquiries made by one of the parties be rejected?
The judge may refuse a request for preparatory inquiries if he considers that it would have the effect of compensating for the inaction of the party bearing the burden of proof, or that it is not necessary.
5.
a) What are the different means of proof?
When proof is discretionary (cf. d), evidence may be provided by any means (affidavits, etc.)
b) What is the difference between one on the one hand the means of proof such as hearing a witness and/or the oral opinion of an expert, and on the other hand the presentation of written proof and a written report or opinion from an expert?
There is no difference between an expert’s oral opinion and his written opinion. It is left to the judge to decide whether a witness should be examined. In certain cases, the judge is bound by the written evidence if it is not contested by the other party.
c) Do certain means of proof carry more weight than others?
An authenticated deed, drawn up by a public official (notary public, bailiff, etc.) in the course of his duties, is deemed authentic unless a plea of forgery is entered.
A private agreement (a document drawn up without the intervention of a public official by the parties themselves with their signatures only) is deemed authentic in the absence of evidence to the contrary.
Witness testimony, as well as other means of proof, is within the discretion of the judge.
d) Are certain conditions compulsory in order to provide the proof of certain facts?
Written proof is necessary for the drawing up of a legal document (contract) the value of which exceeds 800 euros. But the form of evidence of a fact (accident, etc.), is discretionary.
6.
a) Are witnesses obliged by law to testify?
Every person is obliged to cooperate in legal proceedings with a view to discovering the truth.
b) Under what circumstances may a witness refuse to testify?
A witness may refuse to testify if he is unable to do so, or, in a divorce case, if he is a descendant of the couple (cf. question 6.d). He may also refuse if his testimony has a bearing on a fact subject to professional secrecy. Furthermore, the witness may selectively refuse to testify if he can prove just impediment (impossibility of travel, illness, professional reasons, etc.). The judge will assess the legitimacy of this impediment.
c) Can a person who refuses to testify be compelled so to do or be punished?
A person who refuses to appear before a court at the judge’s request may find himself faced with a fine of between 15 and 150 €.
It must also be pointed out that perjury is punishable as a criminal offence.
d) Are there persons whose testimony may not be accepted?
Minors, disqualified adults and persons on whom certain sentences are imposed (attainder) may not testify. The judge may, however, question them for information purposes, without putting them on oath. Furthermore, the descendants of couples in divorce or separation cases may not testify.
7. What is the role of the judge and the parties during a witness hearing? Under what conditions may new technologies, such as television or video-conferencing, be used to examine a witness?
The judge conducts the examination of the witness and puts questions to him. While present, the parties may not interrupt the witness nor address him directly so as not to influence him. If he deems it necessary, the judge will ask the questions that the parties wish to put to the witness.
There is nothing to prevent the judge from making an audio, visual or audiovisual recording of the preparatory inquiries, when the circumstances so demand (as in a case of geographic separation).
III. The status of evidence
8. Does the fact that a piece of evidence has not been obtained legally prevent the court from taking it into account when making a decision?
The judge will not admit any evidence obtained by fraudulent means (hidden camera, recording of a telephone conversation without the speaker’s knowledge, etc.) or in a way that does not respect privacy.
9. If I am a party to the case, will my own declarations have the status of evidence?
In this case, the declarations of this party to the case will not have the status of evidence.
Further information
- Legifrance
- Le site Internet du ministère français de la justice : (French Ministry of Justice website)
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Last update: 12-01-2007
