Take legal action to enforce your rights
Summary : You consider yourself a victim. You have a problem relating to your rights. Looking for how to fix it. To do this, it is important to know where to obtain the necessary information (I). But also, to better define, better understand the nature of your problem by knowing to which area of law it belongs.
Indeed, the way of acting – ie the procedures and mechanisms – differs according to the right in question (II). It can be a problem relating to civil law (A), criminal law (B), labor law (C), commercial law (D), or even administrative law (E).
The purpose of this article is to offer a synthesis allowing to better understand and solve the legal problem in question. In addition, you will find many references to various articles offering you, if necessary, more details.
Foreword: in which situation to take legal action?
You want a court to settle a problem, a dispute: In general, the procedure is litigation : there is a conflict, a dispute between several people. A rule of law does not seem to be respected, and is the cause of the dispute.
However, acting in court is not not necessarily mandatory and beneficial : the procedure may cost more than the dispute itself. In this case, when possible, it may be wise to try to end the conflict amicably.
Moreover, when the problem is urgent, and if you cannot wait for the outcome of a procedure which may prove to be quite long (risk of loss of the goods, etc.), there are emergency procedures. They are called “interim proceedings”, and are subject to conditions: the request must be obviously urgent, the solution must appear obvious, or the request aims to avoid unlawful disturbance or imminent damage.
A summary procedure makes it possible to obtain an emergency decision pending a final decision from a court. It offers so-called “conservative” measures, which provide an initial solution to this urgent problem. In this procedure the assistance of a lawyer is not obligatory. However, the complexity makes this assistance more than useful.
I) Who to turn to for action and information
Every legal professional can inform you, advise you and help you.
- Counsel. Its mission is to advise you, assist you in your legal procedures when you request it. He has reserved powers: he is the only one who can represent you in court and plead to assert your rights, but he is also the only one who can advise you on the procedures to be implemented and the strategies to be implemented in the face of your problem (other lawyers cannot advise you in this way, they can only give legal advice). He can also countersign deeds, allowing you to have a document verified and validated by a professional: he then engages his professional liability. It is mandatory in several procedures.
- The notary. He is present to draw up official deeds (will, marriage contract, signature of a real estate sale, draw up a declaration of exemption from seizure, etc.), authenticate them, and keep them. He is the only one competent to carry out the land advertising procedures (during a real estate purchase for example), to advise the future spouses and to draft the marriage contracts, to evaluate the consequences of the deeds of gift, the deeds of company which must be published , etc. He can therefore advise you and help you to secure your transactions and your procedures: he specializes in questions relating to the family and real estate. For example, you can ask him for advice on the marriage contract, or to find out how your succession will take place. To find one near you: https://www.notaires.fr/fr/annonces-notaire
- The bailiff. It is to him that it is necessary to address to implement the seizure of a good or a sum of money of your adversary; it has the monopoly in matters of forced execution. He is also responsible for forwarding summonses and court decisions to the parties. He can therefore provide you with advice in these different areas. To find one near you: http://www.huissier-justice.fr/Annuaire.aspx
- Police and Gendarmerie officers. They are there to ensure the safety of people and property, and maintain public order by preventing any disturbance. They are also present to note an infraction, to search for the perpetrators and the evidence. You can therefore contact them to report an offense of which you are the victim (file a complaint), or report behavior that seems abnormal to you. You can find the police station closest to you, or the brigade: http://www.interieur.gouv.fr/Contact/Contacter-une-brigade-de-gendarmerie-ou-un-commissariat-de-police
- Houses of Justice and Law. They allow easy and free access to the law for everyone. They inform you of your rights, offer legal advice when lawyers or lawyers offer free advice, and can offer themselves as part of an amicable solution to the conflict. They ensure a judicial presence as close as possible to citizens, since they are located in the various districts of medium-sized and large cities: http://www.annonces.justice.gouv.fr/annonces-12162/annonce-des-maisons- of-justice-and-law-21773.html
- The different associations. They inform and bring help according to the legal problem of the individuals. Their role is to inform, advise, even defend you according to the importance of the association and the legal texts. As a general rule, a membership fee must be paid in order to benefit from the consultations and advice of the lawyers present in these associations. However, some associations provide hotlines. We thus find associations for consumers, for human rights and women's rights, etc. You could mainly call on: Victim support association: http://www.annonces.justice.gouv.fr/annonces-12162/annonce-des-associations-daide-aux-victimes-21769.html Consumer association : http://www.conso.net/content/trouvez-lassociation-de-consommateurs-la-plus-proche-de-chez-vous
- Courts. Even if at first glance, you don't think of going there without a summons, you can meet professionals who will be able to help you and inform you: the clerk, who is present at the reception of a court and can tell you who to turn to, but also the “rights access agents” who can tell you what steps to take depending on your problem.
II) The main procedural families: How to act in practice?
A) In civil matters
You should know that submitting your dispute to a court is not necessarily always necessary. In some cases, there are alternative ways to settle a problem amicably. (1) However, the court remains a solution for settling legal disputes (2).
1) Acting without a court: Try alternative dispute resolution methods
Most relevant cases for this pathway : neighborhood or tenant/landlord disputes, disputing an invoice, family disputes concerning mediation, etc. In general, disputes in everyday life that can be settled through dialogue.
The advantages of these procedures: We seek speed and efficiency through a procedure that is less long and less costly than the court. We use conciliation, mediation, in short, dialogue. The choice of a procedure is adapted to our conflict and our needs. In addition, thanks to the dialogue, each party sees the consideration of interests.
The inconvenients : Keep in mind that these solutions are not magic. Not every legal problem can be solved by an alternative solution. In addition, it will be necessary to go through the court in the event of failure of the amicable procedure (which can lengthen the time of procedure), in addition certain procedures are expensive.
Do we need a lawyer? Most of the possible ways for an amicable settlement do not necessarily require a lawyer (except the participatory agreement). However, it is recommended to seek the advice of a legal professional. Indeed, this assistance makes it possible to be better directed in a sometimes complicated procedure and to better understand the terms and the stakes of the legal mechanisms proposed. In addition, the legal professional helps to guard against a situation of imbalance to your disadvantage during negotiations.
2) Act through the court
Most relevant cases for this pathway : the protection of adults, emancipation, a change of name, the establishment or questioning of a bond of filiation, adoption, inheritance, property, usufruct, servitudes, questioning of a contract, the execution of a contract, the civil liability of persons, road accidents, the doctor's liability, the guarantees given to a payment..
Why act? To seek to end the dispute through an impartial and independent judge who will render a decision. Justice will oblige the other party to perform, and this will make it possible to obtain compensation from the adversary in the event of recognized damage.
When to act? As soon as the conflict arises, it is wise to turn to a legal professional or an organization capable of providing you with legal information (reference above)
Where to go? Turn to the civil courts, depending on the amount of the dispute and the legal problem posed.
Do we need a lawyer? If you have to act before the district court (mainly for disputes whose amount is estimated at less than €10), a lawyer is not compulsory. If you have to act before the tribunal de grande instance, you will be obliged to be represented by a lawyer (lawyer dismissal).
B) In criminal matters
For more details on this criminal procedure, see the article: how to file a complaint.
Most relevant cases: damage to property, theft, fraud, breach of trust, physical or verbal aggression, damage suffered as a result of the carelessness of another, accident at work following a lack of safety on the part of the employer, sexual assault, rape, exhibition...
Why act? To allow the courts to be informed of the offense committed and the harm that has been done to you and the company. The court may decide, if necessary, to order the perpetrator of the offense to compensate the company and the victim.
When to act? As soon as possible, as soon as the offense has been committed: indeed, the evidence is less degraded, and the limitation periods are not extinguished.
Where to go? Any victim of an offense can denounce the facts he has suffered to the police authorities (or gendarmerie), and to justice. It is also possible to contact the houses of law and justice whose contact details you will find earlier in this article.
Do we need a lawyer? It is not necessary to hire a lawyer to file a complaint. But criminal law being complex, it is advisable to seek advice from a lawyer to draft certain documents requiring great rigor and knowledge of legal terms (it is necessary to give the facts legal qualifications, by applying the texts of law. Give the term of the offense committed: making the difference between theft and concealment for example, or between a fraud and a breach of trust).
Thereafter, representation by a lawyer allows a better defense of your interests. In addition, his presence will be compulsory if the trial takes place before the juvenile court or before the assize court (the most serious crimes).
C) In employment tribunal matters: Labor law: Between employee and employer
Definition of “employee” : natural person bound to his employer by the conclusion of an employment contract, and by a relationship of permanent subordination. He performs a work service in exchange for remuneration, the salary.
Definition “employer”: person who, in an employment contract, exercises authority and assigns the tasks that the employee must perform, against payment of wages. He can sanction the employee in the event of a breach or fault.
Most frequent cases for the employee : unpaid wages, harassment at work, contesting a dismissal, dismissal because of a strike, contesting a provision of the internal regulations, problem related to paid leave, etc.
Most frequent cases for the employer : problem to break the employment contract, problem of job abandonment, lack of competence of the employee, accident at work ..
Why act? In order to be able to solve a problem related to the employment contract, to your working relationship. You will be able to assert your rights related to your professional situation.
For the employee, depending on the case, it is possible to ask to have the dismissal canceled and to obtain a rehire. But also to obtain compensation following harassment, to obtain paid leave and company benefits that are due...
For the employer, still depending on the case, it is possible to validate a dismissal called into question by the employee concerned, to assert a non-competition or confidentiality clause which has not been respected by an employee, etc.
When to act? As soon as the dispute arises, in order to quickly set up a dialogue. In short, as soon as a conflict arises between the employer and his employee. Indeed, the prud'homale procedure makes the attempt at conciliation compulsory before any treatment of the case by the judges. It is therefore necessary, first of all, to seek an amicable solution, a compromise, between the 2 parties.
If the industrial tribunal is seized of a dispute, this dispute will therefore first be presented to a conciliation office. If an agreement is reached between the employee and his employer, a report will be drawn up which will have the value of judgment.
If a compromise is not found, it will ultimately be up to the judges to decide, at the judgment office. This office will be composed of 2 judges representing the employers, and 2 representing the employees. It will take an absolute majority to make a decision, so 3 votes out of 4.
If these 4 judges are unable to decide, a professional judge will intervene to decide between the votes: this is the judge who decides. it will make it possible to render a decision to the litigant at a later hearing 1.
It is composed in the same way, whether in the first instance or on appeal. If you decide to appeal in cassation, it will then be professional magistrates, who depend on the social chamber of the Court of Cassation.
where to go ? The competent court in this case is the industrial tribunal. It is only competent for disputes between employer and employee. 2, and between employees if the dispute arises from the employment contract 3. These are individual disputes, ie those related to the employment contract between the employee and the employer. For other disputes, called "collective" such as questions relating to the strike or the elections of union delegates, it will be the civil courts that will be competent.
Do we need a lawyer? 4
It is not compulsory to be represented by a lawyer before the industrial tribunal. Nevertheless, defending oneself before this jurisdiction requires knowledge of the field of labor law and the procedure before the industrial tribunal. It may be wise to seek the advice of a specialized lawyer in order to be defended before lay judges, representing employees and employers.
You can also be assisted by a union defender 5. It is entered on a list, on the basis of proposals from employers' and employees' organisations.
> If you appeal the decision, you will be obliged to hire a lawyer or a union defender.
You can also choose to be assisted by an employee (or employer) from the same branch of activity as yours, by your spouse (or partner, or partner linked by a PACS), or by your father (or your mother , or your legal guardian) if you are a minor.
D) In commercial matters: Between merchants and individuals, but also merchants and merchants
Definition “Trader”: it is a person, natural or legal, who exercises commercial acts and has made it his usual profession. It is registered in the Trade and Companies Register (RCS). Commercial acts mean, for example, bills of exchange, buying to resell, industrial activities, insurance, foreign exchange, banking, brokerage, and any act carried out by a trader for his business.
Do we need a lawyer? Before the commercial court, the lawyer is not compulsory. As for any procedure for which the presence of the lawyer is optional, it is recommended to call on his advice. Indeed, the procedure and the motivation in legal terms of its interests can prove to be complex for the uninitiated.
- Between individuals and merchants
Most frequent cases between individual and merchant : conflict between an individual and a trader such as: a problem concerning a delivery (e.g. late), a product not conforming to what was expected when ordering, non-payment of an invoice, repair work on a piece of furniture or a badly made car, the merchant refuses to apply the warranty or the exchange deadlines.
Why act? To obtain an exchange if the good in question was damaged, to obtain what you ordered, or to ask for a sum of money (damages) if it is not possible to replace it or obtain it. You can also claim damages if you have suffered damage (loss of money due to the error etc.)
When to act? It is always worth trying to reach an amicable settlement before initiating proceedings in court. If you are in a particular/professional conflict, the latter now has the obligation to offer you mediation, before a consumer mediator 6. This channel will be free and confidential for you. But it is not mandatory, you can refuse this proposal.
Where to go?
If it is the merchant who takes legal action against an individual : he must compulsorily seize a civil jurisdiction.
If it is the individual who takes legal action : he has the choice between the civil courts (local court, district court, high court depending on the amount of the dispute) or the commercial court.
If you go to the commercial court, you are choosing to have your dispute settled by judges elected by traders: these are not so-called classic judges (professional judges) that are usually found in the courts. There must therefore be at least 3 elected judges. We must therefore keep in mind that by going before the commercial judge, we face a judge elected by his peers. It is therefore recommended to seek advice from a legal professional on the choice of jurisdiction to be made.
If you enter the civil courts, your dispute will be decided by professional judges: it may be one, or several depending on the jurisdiction and the case.
- Between traders
Most frequent cases between merchants : problems between banks, problem concerning a bill of exchange, a commercial act carried out by a trader and called into question by another, collective procedures (recovery, liquidation, cessation of payments)…
Why act? For example, you wish to open a safeguard or receivership procedure in order to be able to restore the situation of your company, and allow you to keep your activity. You want to obtain the products ordered from your supplier who does not deliver to you. You have suffered damage as a result of these problems, and you want to obtain financial compensation.
When to act? If you have not succeeded in obtaining a solution by an amicable solution. Even for traders among themselves, the legal process can be long and costly. It may therefore be interesting to get closer to the other merchant in order to find a compromise.
You must also be vigilant, and check that your contracts do not exclude the courts to settle your dispute, and do so by arbitration.
Where to go? In all cases, the commercial court is competent. It solves problems between traders, between banks, between commercial companies. But also any question on commercial acts, even when an individual is a party to the conflict. He is also competent in collective proceedings.
E) In administrative matters
Most Relevant Cases : you observe that the administration omitted an important formality or that the official you dealt with was not competent or used an unauthorized procedure, you are contesting an irregular election, a dispute over a contract with the State, misinterpretation of an administrative act, you want to contest an administrative action such as an order, you have suffered damage following public works, you want to contest the amount of your taxes (such as property tax, or income tax) …
Administrative litigation encompasses all disputes that may arise between individuals and companies on the one hand, and the administration on the other.
Why act? These are specialized jurisdictions concerning disputes between State administrations, local authorities, their public establishments and citizens.
When to act? As soon as possible.
Where to go? Mutual agreement procedures also apply in administrative matters. It is possible to find a solution through dialogue, in particular through conciliation and mediation.
If no compromise can be found in this way, it is then necessary to turn to the administrative judge, who judges at the administrative court. He will be able to sanction the administration if he finds that it has acted in a reprehensible way, and compensate the individual if he has suffered damage.
Do we need a lawyer?
A lawyer is mandatory in some cases 7 :
- Request for payment of a sum of money
- Application for discharge or reduction of a sum whose payment is claimed personally
- Dispute concerning the performance of a contract
It is not mandatory when the request concerns 8 :
- disputes relating to highway fines
- disputes relating to direct contributions, turnover taxes and similar taxes
- individual disputes concerning civil servants or agents of the State and other persons or public authorities as well as agents or employees of the Banque de France
- disputes relating to pensions, benefits, allowances or rights granted under social assistance or action, housing or in favor of workers deprived of employment, reserved jobs and compensation for repatriated persons
- disputes in which the defendant is a local authority, a public establishment under its jurisdiction or a public health establishment
- applications for the execution of a final judgment
There is also the social security court, which is competent for disputes between social security organizations and their users.
As well as the joint tribunal for rural leases, competent to judge disputes between an owner and the operator of agricultural land or buildings.
- one-month period: Article R1454-29 of the Labor Code. ↩
- Articles L1411-1 and following of the Labor Code. ↩
- Article L1411-3 of the Labor Code. ↩
- Articles L1453-1 and following of the Labor Code. ↩
- Macron law of August 6, 2015, decree n° 2016-975 of July 18, 2016. ↩
- order of August 20, 2015 and decree no. 2015-1382 of October 30, 2015. ↩
- Article R431-2 of the code of administrative justice. ↩
- Article R431-3 of the code of administrative justice ↩