Civil Procedure and Evidence: Competence, Conduct of the Case, Proof
Civil procedure tests the New Code of Civil Procedure of 2002 together with the evidence rules of the COC: competence, service, the conduct of the case, remedies and proof.
Jurisdiction and the action
- Subject-matter competence and territorial competence are distinct; exclusive heads apply (real property disputes at the situs, personal status before the confessional courts).
- Service is effected through a huissier de justice; defective service is annulled only if it caused prejudice - no nullity without grief.
- Lis pendens and connexity may suspend or join actions; a valid arbitration clause strips the court of jurisdiction.
Conduct of the case
- The file is prepared under a juge de la mise en état: exchange of briefs and exhibits, possible expert report, then pleadings and judgment.
- A default judgment is attacked by opposition; judgments are attacked by appeal, then by pourvoi en cassation on points of law only.
- Provisional enforcement and attachment secure the claim pending final judgment.
Evidence
- Written proof is the rule; exceptions are aveu, oath, presumptions and testimony where admitted. A commencement de preuve par écrit, corroborated, can substitute for a writing.
- The burden lies on the party asserting the fact; the expert informs but does not bind the court.
Worked example
A supplier sues for USD 20,000 on an oral contract. He produces a bank transfer, a receipt for a partial payment, and messages acknowledging the balance. Together these constitute a commencement de preuve par écrit, so testimonial corroboration becomes admissible and the claim is provable.
Traps
Mixing opposition with appeal; raising a counterclaim at the wrong procedural stage; pleading nullity without showing prejudice; letting the appeal deadline lapse; treating the expert's report as conclusive.