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Public justice and private justice

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Marine Delon Dion

on 20 February 2015

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Transcript of Public justice and private justice

Public justice and private justice
- judgments by the private justice can't have the same value as those pronounced by a state judge
- conciliator help to find an agreement, mediator propose a solution
- the arbitrator can't contrary to the judge resort to the public force to make apply his judgement
- the judge is in the obligation to rule on an affair (art. 4)
- the arbitrator has a mission defined by the parties
- public justice : rules according to the Law
- private justice : expression of the general will and respect the interest
- birth of the French State in the XIIIth century : resolution of conflicts through the public justice (own state juridictions and ordinary judges)
- when the public show ineffectivenesses : modes of resolution of conflicts by the negotiation : mediation or arbitration
- creation of private justice
- private justice and public justice put in competition, aim : finding the most efficient one
- private justice and public can cohabit and be bound
I. Public justice, Private justice : between differences and possible links
A. Differences and oppositions between priate justice and public justice
- public justice : dominant since the Middle Ages
- private justice : alternative way of resolution of conflits
- private justice : arbitration, mediation of conciliation
- conciliation : find an agreement
- mediation : submit their dispute to a mediator
- arbitration : pronunciation of a judgement to a compulsory value
- public justice and private justice : differences of processes
- differences situated at the level of the staff
- public justice : State jurisdictions, ordinary judges
- private justice : private arbitrators, moral or physical persons
- private justice : compose themselves their arbitration court without seeing themselves imposing a judge
B. A possible agreement and observed between public justice and private justice
- private justice can be legitimized by the private law (art. 1134)
- the choice of the private justice remains possible because of the acceptance of the public authority (it tolerates the existence, organizes it and can intervene at the end of the judgement)
- international trade possesses its own chamber of arbitration
- adoption of the Law about new economic regulations on May 15th 2001 to adopt an arbitration clause for contracts concluded at the rate of a professional activity
- art 2061 : private justice can extend towards other sectors of the law since the public justice organizes it
-the intervention of the public authorities is sometimes necessary to return the enforceable judgment and to strengthen the decision
- if one of the parties refuse the judgement, the recourse in appeal of in cancellation is made in front of the state judge
- conciliation made by the private justice before the use of the state jurisdictions when the conciliation failed
- art 127 of the new code of civil procedure : propose an attempt at reconciliation at any time of the procedure

II. Is the private justice in the process of strengthening ?
A. A stronger link between the two in favor of private justice : an idea increasingly discussed
- Public justice sometimes meets some limits
- public justice : use of a system of judicial hierarchy which favor systems of pressure
- private justice : choice of the parties, people they trust and are independent
- public justice : slowlyness of the procedures
- arbitration : more efficient, period of transaction not exceed 6 months
- commercial area : private justice : confidential, speed and pragmatism, avoid the burdens of public justice

- art. 21 of the code of civil procedure : "it come into the condition of the judge to reconcile the parties"
- Hubert Moitry "Public justice, Private justice ?" : small civil disputes could be supported by "private judges" whose consultation is mandatory and decisions are binding to relieve the state courts : advantages of speed, pragmatism and confidentiality
- greater complementary between the two raises questions today
- privatization of justice include some risk
B. The incurred risks of a too big "privatization" of the justice
- the State guarantees a preservation of the peace of mind, the general interest protected by the ordinary judges who say the law and return judgements in the name of the French population
- private justice can be applied only in domains where the public order and the general interest can't be affected
- judges is the object of distrusts in a country which favor the application of the law stemming from the general will rather than leave too many powers to the judge
- private justice can't keep the rules of bases which it uses for the commercial disputes for the resolution of the other disputes implying the public order and the life in society

- debate about the cost of the private justice
- some people assert that the state justice is more expensive because long
- some say that private arbitrators must be paid sometimes too high and the cost is mainly accessible for companies and not to all private individuals
- public justice guarantee to each the possibility of having a lawyer during a trial
- private justice requires a remuneration for the arbitrators paid by the parties and can be completed by the cost of a procedure of state justice
- debate about the discretion and the confidentiality of the audiences : publicity of the judgements and public audiences allow guarantee an impartial way
- confidentiality seems sometimes incompatible with an objective judgement ex : Tapie case
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