Court System Comparison: Australia vs France Flashcards
Type of law system.
Australia adopts a common law system - Adversarial system. In the context of law, Australia’s trials involve the competency of the parties to reveal the truth of a case.
France adopts a civil law system - Inquisitorial system. In the context of law, France’s trials are led by the juge instructeur (investigating judge) to collect evidence themselves and ultimately form a verdict.
The role of prosecution.
The parquet (France’s prosecution) is responsible for initiating the trial, referring the case to a juge instructeur.
Due to the increased role of the judge, the parties involved have reduced control over the case.
In comparison to Australia’s adversarial system, the trial is heavily reliant on the parties’ ability to substantiate their arguments.
The role of defence.
The role of the defence is limited, inherent in the nature of the inquisitorial system because of the same reason that the judge has more control over the case.
In comparison to Australia’s adversarial system, parties are responsible for:
1. Gathering evidence
2. Presenting evidence
3. Testing the other party’s evidence
4. Arguing how the law should be interpreted (common law precedents shouldn’t apply; statute law should be interpreted).
The parties must ‘fight their fight’.
The role of the judge.
The role of the judge is active and requires them to:
- extensively investigate the case
- define legal issues
- gather evidence with the police
They establish the facts of the case and apply provisions of the applicable legal code.
In comparison to Australia’s adversarial system, the judge or jury are the impartial adjudicators of the contest between the parties.
They may be involved in ‘finding the facts’ of a case to deliver a verdict (liable - civil or guilt - criminal) based on the evidence collected, but not to the extent that Inquisitorial systems (active participation of judges) - they have passive judges.
Case study exemplary of this process.
TotalEnergies Lawsuit (2019)
- Plaintiff (accusing party of a civil trial)
In 2019, six civil society organisations accused the company of failing to ensure the safety and wellbeing of the communities in Uganda because of the Tilenga oil development.
Lawsuit was filed against TotalEnergies for allegedly failing to comply with the 2017 French Duty of Vigilance law.
- Defence - TotalEnergies (accused party)
Unable to control much of the trial, they merely endorsed their argument through statements in court.
- Juge Instructeur
In 2023, the Paris civil court dismissed the lawsuit against TotalEnergies. “Only a judge examining the case more in depth could assess whether the accusations against TotalEnergies were founded, and then proceed to an audit of operations on the ground.” (America Hernandez, 2023).
