Error of Law and the Role of the Court of Cassation in Ensuring Judicial Unity and Predictability of Law

Extract

[...] Article 627 of the Code of Judicial Organization and Article L. 411-3 of the Code of Civil Procedure authorize the Court to intervene in these cases, provided that the error is immediately verifiable and has a decisive impact on the outcome of the dispute12. Thus, the intervention of the judge of cassation in the correction of manifest material errors does not constitute a challenge to the power of appreciation of the judges of the fact, but a requirement aimed at re-establishing the accuracy of the factual data on which the contested decision was based. [...]

[...] The contemporary developments of civil contentious proceedings have led to a reconfiguration of the normative role of the Court of Cassation. The introduction of the enriched motivation of the judgments aims essentially to strengthen the readability of the legal reasoning and to refine the doctrinal orientation of the judges of fact. In the same spirit, the reform of the filtering of appeals aims to rationalize access to cassation control by restricting its office to questions of determining interest for the evolution of the law. [...]

[...] To what extent does the Court of Cassation manage to reconcile its office of rectifying judicial errors with the respect of the principle of the sovereignty of judges of the first instance? « Errare humanum est, sed perseverare diabolicum » - « Error is human, but persisting in error is diabolical ». This maxim, attributed to Seneca before being consecrated by Saint Augustine, resonates with particular acuity in law where legal security and the predictability of judicial decisions constitute structuring principles of the rule of law. [...]

[...] 411-2, paragraph of the Code of Judicial Organisation). Therefore, the appeal in cassation, the main instrument of this judicial control, constitutes an extraordinary means of appeal, which can only prosper in the presence of a proven legal irregularity. When the existence of a legal error is established, the Court of Cassation has two correction modalities, the implementation of which depends on the nature and scope of the irregularity found: cassation with referral and cassation without referral. Cassation with referral is preferred when the identified legal error requires a new examination of the facts, which falls within the sovereign power of appreciation of the judges of the first instance. [...]

[...] Another manifestation of the error of law resides in an erroneous interpretation or incorrect application of a norm. This type of error can take several forms: the omission of an imperative rule leading to a decision contrary to the guiding principles of the law; the erroneous interpretation of a normative text, modifying the scope of the rule and resulting in a decision incompatible with the state of positive law; confusion in the hierarchy of norms, particularly when a judge applies a regulatory provision in contravention of a legislative norm or a conventional norm4. [...]