Legal consultation on the case between Daphné and Rebecca regarding a request for interim relief to remove or silence a rooster, highlighting procedural flaws.
Extract
[...] However, several procedural elements can be contested. In addition, the obligation of a lawyer is provided for by thearticle 46 paragraph 1 of the CPC for cases before the judicial court ruling in summary proceedings. This obligation aims to ensure the quality of the pleadings and the regularity of the procedures. In this case, Rebecca has not appointed a lawyer, which could lead to the nullity of the procedure. I. Absence of prior conciliation Article 750-1 of the CPC impose a prior attempt at conciliation before any judicial seizure, except in cases of urgency. [...]
[...] This part falls under the regime of the non-receivable end ( [...]
[...] General Conclusion Based on the arguments developed above, it appears that the procedure initiated by Rebecca is marred by several flaws : 1. Lack of prior conciliation (Article 750-1 CPC). 2. Default of appearance and default of constitution of lawyer (articles and 762 CPC). 3. Irreceivable demand for interim relief due to the lack of jurisdiction of the interim relief judge (Article 835 paragraph 1 CPC). These means should be raised before the judge in order to obtain the irreceivability or nullity of the procedure. [...]
[...] However, the manifestly illegal nature of the disturbance is contestable, as the crowing of roosters is an intrinsic characteristic of rural life. The Court of Cassation has confirmed this principle in a ruling of the [...]
[...] Furthermore, thearticle 46 paragraph 1 of the CPC imposes the obligation of a lawyer before the judicial court ruling in summary proceedings. This obligation aims to ensure the quality of the pleadings and the regularity of the procedures. In this case, Rebecca has not appointed a lawyer, which is also a fundamental flaw resulting in the nullity of the procedurearticle 47 CPC). The Court of Cassation ruled that a request introduced by a third party without written mandate in a judgment of 23 May 2012Cass. [...]
