he visited the state justifications produced, a decision was pronounced upon the authority of res judicata so that a new application identical, albeit accompanied by new evidence is inadmissible (2 ° room calendar, June 4, 2009, appeal No. 08-15837, BICC 712 1 December 2008 and Legifrance). See note from Mr. Sommer referenced to the bibliography below. The ruling applies even in cases of infringement of a principle of public policy. (2nd Civ. - October 25, 2007. BICC No. 676 of February 15, 2008). Where the party has exercised his right of appeal, the case remains "pending" before the Court of Appeal and the authority that attaches to the trial, also called "the force of res judicata" is kept up 'that the higher court has ruled.
If the trial decision is reversed or reformed if it is only the authority of res judicata attaches when the new decision. If the trial decision is confirmed, the authority of res judicata still applies. After its meaning the decision of the Court of Appeal, takes effect. This principle, which establishes the hierarchical principle governing the relations of the courts, prohibits, except for a higher court before a legal challenge (opposition, appeal or cassation) to reconsider the provisions of a previous decision become final, he imposes, under certain conditions, the second court in which the exception is raised, to consider the content or the final decisions already handed down by another court of the same Order (civil courts together, these criminal courts, civil courts and criminal courts). The authority of res judicata applies also on the legal issues for the knowledge which the Act gave them jurisdiction, where the courts belong to different orders (Courts of the judicial and administrative tribunals).
authority of res judicata serves the parties, in both its positive and negative: it is a presumption of truth on one hand and inadmissibility of the new request to the other condition, s a triple identity of parties, object and cause. These conditions are cumulative, so that is no basis in law the decision granting the end of inadmissibility not characterize the meeting (Comm., January 16, 1980, Bull. 1980, IV, No. 26). He was tried (2nd Civ. - October 25, 2007, BICC No. 676 of February 15, 2008), there was identity of cause. about the plaintiff brought an action in contractual liability in a civil court while his application previously filed before a criminal court based on tort was rejected.
authority of res judicata is agnostic only final decisions with respect to what has been the subject of the trial and what was decided in the trial or stopped (2nd Civ., July 10, 2003, Bull., II, No. 237 , p. 197, 1st Civil Chamber November 22, 2005, BICC 1 March 2006 No. 358, January 17, 2006. BICC No. 638 of April 15, 2006)) and further provided that the court has adjudicated on the merits and not on a procedural issue. The decision declaring an application inadmissible as a new appeal does not enjoy the authority of res judicata. It follows that this inadmissibility does not preclude that the application be made in a new instance (2nd Civil Chamber July 9, 2009, appeal No. 08-17600, BICC No. 715 of 1 February 2010 and Legifrance). However, the rationale for a decision or a decision can be taken into consideration to justify a new right of action (2nd Civil Chamber May 20, 2010, appeal No. 09-15435, BICC No. 729 of October 15, 2010 and Legifrance)
orders judge's pretrial did not res judicata, with the exception of those acting on procedural objections and incident terminating the proceeding (3rd Civil Chamber, July 8, 2009, appeal No. 08-14611, BICC No. 715 of 1 February 2010 and Legifrance). As to the criminal court, Part of the decision by which it shall act only on the civil action is only of an authority when door. on the regularity of information acts (Ch. mixed. - October 10, 2008, Report of Councillor Mrs Radenne rapporteur, Mr. Notice of Drops First Advocate General). An injunction does not decide any dispute, it has no authority of res judicata (2nd VIC. - November 17, 2005, BICC No. 635 of 1 March 2006). Similarly, an inadmissible in the state lacks the authority of res judicata. (2nd Civ. - July 3, 2008, BICC No. 692 of 1 December 2008) The authority of res judicata does not apply to decisions in contentious (1st Civ., January 13, 1996, Juris-Data No. 000-080, November 6, 1979, D. 1980, p. 295.). The reasons for a decision, but only those necessary to support the decision, not the authority of res judicata, have the effect of the authority of res judicata "even if we admit to Exceptionally, some questions may have been resolved with authority of res judicata by implication or virtual "(Note by the Prime Advocate General Drops Case referred to above. See also the judgments of the Commercial Division of June 28, 1988 (Bull. 1988, IV, No. 215; third Civ.) And March 20, 1978 (Bull. 1978, III, No. 126.). But this sometimes controversial opinion was dismissed by a decree of March 13, 2009 (Cass. Ass. Plen., March 13, 2009, No. 08-16. 033, F P + B + R + I, N ° of appeal: 08 -16033 to see Legifrance) by which, the visa sections 1351 of the Civil Code and 480 of the Code of Civil Procedure, the Assembly plenaries held on the report of Ms. Gabet, counselor, and the opinion written by Mr. Maynial first attorney general, that "the force of res judicata does not occur only in respect of which the subject of a trial and was settled in his device." But in a decision of the Assembly plenaries, the Supreme Court appears to have definitively established case by saying "What so ruling, while the decision of 19 December 1995 had not decided in its operative counter-claims by MX. ., the Court of Appeal violated the aforesaid provisions' "(Assembly plenaries March 13, 2009, Report of Ms. Gabet, Counselor-Rapporteur, Mr. Maynial Notice, First Advocate General, BICC No. 703 of June 1, 2009).
authority of res judicata can be invoked when the application is based on a different cause from that which led to the trial or when subsequent events have come to change the situation previously adjudged (Cass. second CIV. - June 3, 2004. BICC No. 605 of 1 October 2004 No. 1389). the Court of Cassation has held that the plaintiff to present as soon proceedings on the first request, all the means it considers capable of justifying it. Otherwise, the only change of legal basis is not sufficient to characterize the novelty of the case, and consequently to reject the authority of res judicata on the original application (Ass. Plen. July 7, 2006). However, if applicants have previously rejected a request expulsion of former employees of the author who authorized them to remain free in a house belonging to him, the court applied a second time could only conclude, in the absence of new facts come to change the situation previously recognized in court, and without incurring the alleged violations of Article 6 1 of the European Convention on Human Rights, Articles 544, 545 of the Civil Code and Article 1 of Protocol No. 1 the above Convention, they were inadmissible in their claims for the same purposes they intended to get new, relying in particular on the right of unilateral termination recognized the lender when the loan is indefinite, the termination of the contract between the parties and the expulsion of the occupiers (1st Civil Chamber, appeal No. 08-10517, No. BICC 720du Legifrance and April 15, 2010).
But res judicata may be invoked when subsequent events have come to change the situation previously recognized in court. Thus, resolutions of empowerment of a property agent who had been tried without power by the lower court, which had been taken after the trial decision, may have been legal facts new depriving the decision of the authority of res judicata in respect of the appeal body (2nd Civil Chamber May 6, 2010, appeal No. 09-14737, No. BICC 728du Legifrance October 1, 2010). See his note Junillon referenced in the bibliography below;
authority of res judicata attaching to the decision declaring inadmissible a claim, as formed for the first time in question of appeal, prohibits not to the author to introduce it in a new proceeding before the judges of the first degree (3rd Civil Chamber, 27 May 2009, appeal: 08-11388, BICC No. 711 of 15 November 2009 and Legifrance) see also, 3rd Civ., January 12, 1993, Appeal No. 90-17. 764, Bull. 1993, IV, No. 4 (2). Finally, except in certain matters, French law considering it is a rule of private interests on the one hand, the parties may agree to waive the provisions of a decree or decision, to compromise, to begin a new procedure, or to retry the dispute, possibly through arbitration and, secondly, the judge can not automatically raise the plea of the authority of res judicata .
A ruling by the Court of Cassation of 22 May 2003 (second Cass. civ., Juris-Data No. 2003-019040) decided that Article 174 of Decree of 27 November 1991, complaints concerning the amount and recovery of attorneys' fees may be tried without further delay provided for that act of limitation extinctive thirties, that Article 480 of the New Code of Civil Procedure, which stated in its ruling on an end device of inadmissibility had the authority of res judicata of the attack that he contrasted. The Court concluded that res judicata'autorité an order ruling on a procedural bar to no substantive examination could preclude filing a new claim before the Bar, Judge of first degree of the contested fees, since the prescription of the action was not granted and when deciding the contrary, the first president had violated the aforesaid.
authority of res judicata attaches to the court but also between parties to the transaction (Ass. Plen. February 24, 2006, BICC 640 of May 15, 2006), as the arbitration award. The third chamber of the Court of Cassation (third Civ., October 9, 1974, Bull. 1974, III, No. 354), the device which includes reservations, even implicit, not on the item, authority of res judicata.
In terms of Community law, in a ruling dated March 16, 2006, the Court of Justice (ECJ, First Chamber, March 16, 2006, aff. C-234/04, Rosmarie Kapferer v. Schlank JCP & Schick GmbH A 2006 act. 278), who had received a preliminary ruling under Article 234 EC, said it is important that judicial decisions become final after exhaustion of available remedies or after expiry of the time by these actions can not be challenged. In the Court of Justice, Community law does not require a national court to disapply the rules of procedure house to review a judicial decision having the force of res judicata and cancel it when it appears that it is contrary to Community law.
There is a procedural rule which derives the authority of res judicata which it enforces, is the principle of concentration of demand. It is also close to the rule of uniqueness of the proceeding that applies to industrial tribunals. The Supreme Court has approved a Court of Appeal ruled that it belonged to joint guarantees continued pursuant to their obligations to submit in the initial instance of all the means they thought of to justify the total or partial rejection of the application. Having noted that, pursuant to their continued commitment to security, they had developed during the original proceeding that challenges to the validity and scope of their loans to argue that the bank was liable to civil them and should be ordered to pay them damages which give off against the convictions against them, the Court of Appeal had concluded exactly what was inadmissible the application before it, which tended to call into question, with a new way which was not entered in time, the irrevocable sentence pronounced against them (1st Civil Chamber July 1, 2010, appeal No. 09-10364, LexisNexis, and Legifrance)
It should be noted however, that in that case The Court of Justice has applied the rule of the authority of res judicata in the appeal which had been hired a second time before a national court on the basis of non-compliance with Community law when its first decision had become final, the ECJ rendered its decision by referring to the internal procedural rule that governed the law applicable before the national court had acted, but the Court did not say if she had declared the appeal inadmissible if one or other of the parties had entered into in. Note that in his opinion, Attorney General V. Antonio recalled that even in cases where liability of the state is committed for breach of Community law by national courts, as the Court had already ruled in a decision Köbler, application of this principle does not impose "[in] any case [...] the revision of the judicial decision which caused the damage"
In international law, if the judge of enforcement to ensure compliance of the decision which is subject to French international public policy, this control can lead to review the merits of a decision which has acquired force of res judicata in the State from which it emanates irrevocable authority and exhaustion of remedies in this state (CA Versailles (1st Ch, 1st Sec.) BICC-January 6, 2005 No. 632 of January 15, 2006).
Texts
Civil Code, Art. 1351 and s.
Code of Civil Procedure, art. 480 and 1476.
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