The local courts were created by an organic law of February 26, 2003 and attached them to the district courts (TI). After only 8 years of existence, the law of December 13, 2011 removed them. This provision will come into force on January 1, 2017.
But then, you will say to me, why be interested in a judge doomed to disappear soon? Well because at the time when these lines are written there still exists and, more importantly, if the law eliminates the local jurisdiction, it does not eliminate the office of these judges who, attached to the Tribunal de Grande Instance as of January 1, 2017, will exercise new functions.
Strange but understandable reasoning at a time when the lack of magistrate is sorely felt, it would be a shame to deprive oneself of experienced people and that can still be useful ... Their cases have already been redistributed to the magistrates and it is planned to keep them as assessors at correctional hearings and to entrust them with investigative missions to the civil chambers.
It therefore seemed interesting to go back to the functions of the local judge to understand what went wrong with these modern day justice of the peace.
An idea full of good intentions
Initially, the creation of local judges had only one goal, to unclog the district courts which are crumbling under what is called "mass litigation". That is to say, the little affairs of everyday life which, in principle, by their simplicity and obviousness, do not require long speeches. Just a solid training in law.
So instead of creating professional magistrates' positions, the choice fell on the recruitment of people from civil society who had exercised judicial functions for 4 years or had 25 years of experience in a private company and being aged at least 35 and not more than 75 years old.
Recruited on file, they had to follow a 10-day internship at the National School of Magistracy, a probationary internship in a jurisdiction of 25 to 35 days and continuous training at the rate of 5 days per year. Subject to the statute of the magistracy, they are sworn in, but do not wear a robe, instead they wear a medal. They are irremovable (to ensure their independence) and may exercise another profession.
But… Hell is paved with good intentions
Very often, proximity judges are former judges, lawyers or law professors. They are therefore people who know the law, maybe a little too much ... Because the problem often encountered in these jurisdictions is too strict an application of the rules of law with results sometimes going to the opposite of what one expected of 'them.
1st difficulty a low spring rate does not determine the legal difficulty
To ensure that only minor disputes would devolve on them, the legislator has taken care to limit their powers to the sum of 4000 euros (3000 euros at the time of their creation). This leaves the field open to all sales and service contracts… (except consumer credit).
Yes but here it is! Nothing is ever easy with the law! A sum of money has never made it possible to assess the legal difficulty of a case. A damaged dress in the dry cleaners, a defective computer… It's less than 4000 euros, but it can quickly become a big legal headache. Especially when looking at issues of resolution, cancellation, or revocation of a contract ... Or that it is necessary to determine the responsibilities of the parties during the execution of a contract ...
In law the devil is hiding in the details and the most innocuous case can hide a sprawling monster that would have been better to entrust to a professional judge. Certainly the local judge will resolve the dispute, but it will no longer be a question of dealing with mass litigation.
2nd difficulty: the rules of procedure
An applicant will seize the judge by declaration to the registry and ask the principal to reimburse his computer or a refrigerator ... The request is quantified, it is less than 4000 euros, so all is well.
But the foreseeing litigant, will also ask in the alternative the cancellation of the sale, just in case… It is common sense.
But this is often where everything gets complicated! Why ?
Because in law, a request for cancellation (such as restoration or a request for an expertise ...) is an indefinite request.
And this is not done by declaration to the registry but by summons. Anything that is not quantified (the obligations to do or not to do) is an indefinite request. The local judge will therefore reject all your requests without even ruling. And the court of cassation will agree with him because article 843 of the code of civil procedure expressly provides for it.
Do you see the problem? Instead of decluttering the courts, we are increasing the number of remedies.
Why ? Because our litigant does not understand these procedural subtleties. He just had to get a lawyer, you might say? Yes, of course, or… the judge could have read his file in advance, anticipated the legal problem, listened to the plaintiff and… suggested that he modify his requests at the hearing.
3rd difficulty: listening and paying attention to others
It is part of the ethics of the magistrate to listen to requests and explain to the litigant appearing alone at the hearing, what is falling on his head.
Attention, we are not at home aunt monique, nor in the tea room and even less in law school. The judge can redirect a badly started case, but not act in the place of the litigant, nor advise him as a lawyer would do. However, it can adapt to the most disadvantaged people (who are often those found in local courts) and make the applicant understand that his request was poorly made. This would have prompted him to review his copy instead of rushing to cassation.
Of course, this does not concern all the local judges, some of whom have shown tact and pedagogy. But it must be recognized that the gap of incomprehension created between litigants and local judges has only accelerated their deletions.
In short, you need solid skills. But not only, because attitude, tact and delicacy count for a lot in the act of judging.
Judging also means knowing how to listen and understand the request of the litigant. The professional magistrates who saw their image severely scratched by the Outreaux tornado (yes… her again!) had plenty of time to revise their ethics.
But when you read some decisions ... Obviously, the information was not released. An example of motivation given by a local judge? Only one. And frankly when it comes to "heroic" prose we haven't found anything better.
"The poor dimension of the defendant who would like to compete with the biggest crooks, which in no way constitutes a laudable goal in itself except for certain characters steeped in dishonesty like here Mrs. X ... endowed with an intelligence quotient as small as the living space of her caravan, her concerns clearly strictly financial and whose greed disputes her with deceit, the fact that she was thus cornering her future tenants without qualms and with the experience of impunity and that she had left the virtual domain where it claimed to prevail with impunity at least until today, the fraudulent or villainous acts perpetrated by it requiring the implementation of investigations likely to neutralize it definitively ”
"That if the present court easily conceives that the applicants had to resort to certificates to support their allegations, it could not accept it from the lessor, supposed by its capacity, to hold and to produce at any time, except knowingly and therefore wrongfully refrain from all useful documents, unless Ms. X ... had other more convincing but certainly very embarrassing elements to produce to the court here than all the certificates without exception, of pure and manifest complacency which she believed but wrongly that they would be enough to corroborate these allegations, it falls to declare these last falsehoods and to sanction them ”
Here is a literature which is (always) so cold in the back. And as the decision could not be appealed (the local judges judge in first and last resort) the judgment landed directly in cassation to be broken there in a lapidary manner (2nd civic chapter; December 14, 2006, n ° 04 -20524).
Good needless to say that it caused a lot of noise and harm to the image of local justice (And certainly more to the applicant!) But it was worth taking large extracts as a reminder. Either way, always beware of a decision that uses words like "it falls" - terms that are so hackneyed in a judgment do not bode well.
Towards a conciliation mission?
A new path is open to them. The decree of April 1, 2015 (n ° 2015-282 of March 11, 2015) requires applicants wishing to bring an action before a civil court must first have done everything possible to find an amicable solution.
To make up for the crucial lack of conciliators, whose task is proving to be immense, it would be a question of merging them with the conciliators to create “local judge conciliators”.
