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12 février 2011 6 12 /02 /février /2011 13:11

C.H. van Rhee, ‘The Influence of the French Code de Procédure Civile (1806) in 19th Century Europe’, in: L. Cadiet & G. Canivet (eds.), De la Commémoration d'un code à l'autre: 200 ans de procédure civile en France, Paris: LexisNexis/Litec, p. 129-165
 

 
1. Introduction

The number of European jurisdictions where Napoleon’s Code de procédure civile (1806) left its mark, either directly or indirectly, is vast. According to R.C. van Caenegem, this is partly due to the fact that this code suited the needs of the 19th century and also embodied much of the common European procedural heritage. Even so, the influence of the French code remains remarkable since no one will deny that this code was defective in many ways. In addition, it was far from innovative. After all, the code was largely based on the 1667 Code Louis. That the 1806 code was very similar to the preexisting procedural law is clear; the main drafter of the code, E.-N. Pigeau (1750-1818), was said to have not been obliged to introduce many changes in post-1806 editions of his introductory work on French civil procedure.

One may ask why, in the light of the above, such a mediocre piece of legislation proved to be able to dominate the procedural debate for a large part of the 19th century and even beyond. It seems that this is largely due to the fact that the code was used as a (positive or negative) point of departure when in the 19th century legislation was drafted in various European countries. 

In the present text I will especially focus on Geneva, The Netherlands and Belgium. However, before doing so I will give an overview of the various European jurisdictions (1) where the 1806 code for a shorter or longer period became the law of the land or (2) where it was not introduced but where its model nevertheless influenced subsequent national legislation. Within the first group, I will distinguish the countries where the 1806 code was repealed shortly after the defeat of the French emperor and the countries where the code remained in force for a longer period of time. Within the second group, the jurisdictions where French influence was direct may be distinguished from jurisdictions where this influence can only be noticed through an intermediate source which in its turn had been influenced by the French code (either directly or indirectly).   

 

Plan

2.1 Jurisdictions where the French code became the law of the land

2.2 Jurisdictions where the French code itself was  never introduced but where nevertheless French influence may be noticed

3. The Geneva Loi sur la procédure civile (1819)

4. The Dutch Code of Civil Procedure (1838)

5. Procedural Reform in Belgium (1869)

 

6. Conclusion

The French Code de procédure civile (1806) shaped civil procedural law for a longer or shorter period of time in many European countries. Even in countries where this code was never officially introduced, it was taken as an example for national codification efforts. Whether the popularity of the French code was due to its intrinsic qualities may however be doubted. The example of Geneva, The Netherlands and Belgium shows that in the19th century one was well aware of the various shortcomings of the French code and this resulted in several amendments to the French procedural model. The Geneva code and the Belgian draft show the largest number of amendments, whereas the Dutch code was more conservative in its outlook. [...]

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