Cour de cassation

The Court:

Given that criminal fault under art. 319 and 320 Code pénal includes all the elements of civil fault, that Malécot was prosecuted under those articles and was acquitted on the ground "that no fault could be found against him", that such a general and unconditional statement which has the authority of res judicata prevented any inquiry by the civil judge in the case into the existence of a quasi-delict such as might render Malécot civilly liable, even in part;

Given that the judgment under attack is criticised for not replying to Ollagnier's arguments that if the speed of the vehicle was not the cause of the accident it at least aggravated its consequences and thus justified making Malécot partially liable, and for not admitting Mme Bourbon to testify to the excessive speed of the vehicle;

But given that in alleging and offering to prove that the excessive speed of the vehicle contributed to the occurrence of the accident the claimants are inevitably imputing a fault to Malécot, that in view of the fact that the criminal court had declared that Malécot had not committed any fault, the judgment under attack could not have admitted Mme Bourbon to testify to the excessive speed of the vehicle without breaching the principle of the authority of res judicata, and that in affirming, in reliance on the criminal judgment, that Malécot had not committed any fault, the court sufficiently responded to the arguments put to it;

For these reasons DISMISSES the application for review.

Recent change of doctrine (and change of law). Until recently, the principle set out by the judgement of 30 December 1929 seemed well established (Civ.1, 22 May 1991, Bull no. 163: “given the existence of a criminal judgement which holds that the elements cited by the client of a hotel business who has suffered a fall are insufficient to prove the existence of obvious negligence, the principle of res judicata in a criminal court makes it impossible to hold in a civil action that the same facts amount to negligence” or Civ.2, 31 March 1993, Bull. no. 130: “A civil court is bound by a criminal judgement discharging an accused on the basis that the victim’s injuries have been reported late and that no chain of cause and effect between the injuries and the accident has been established”). Even if prior to the coming into force of the law of 10 July 2000 and the decree of 30 January 2001 (see below) legal writers had observed a lessening of the authority of res judicata in a criminal case over a civil action, as a result of both legislation increasing the powers of criminal courts to grant remedies for civil loss (Code of Criminal Procedure, art. 372 and 470-1), and of the action of the courts, the civil courts taking advantage, in particular, of the varied grounds of indemnification to restrict the dominance of the doctrine of criminal res judicata, nevertheless it seemed to be accepted fact that this is the area, involving a party’s liability for his own personal acts, in which the authority of res judicata produced its most radical effects on the basis of the principle of the identity of civil and criminal negligence laid down by the Court of Cassation in a judgement of 18 December 1912. Since that judgement, legal precedents have constantly upheld the fact that “a criminal wrong as defined by art. 319 and 320 of the Criminal Code comprises all the elements of a civil wrong, whatever the nature of the liability incurred, whether it be tortious or quasi-tortious liability, or contractual liability giving rise to an obligation to use one’s best endeavours (“obligation de moyens”)”, the findings of the criminal judgement relating to the wrong and to liability therefor constituting “the indispensable support of criminal judgement” and necessarily being “the res judicata”, provided however – still assuming an adverse finding by the criminal court – that the civil court recovered its freedom of decision if new elements or particular circumstances not taken into account by the criminal court are brought to light” (NB: possibility foreseen by the judgement of 30 December 1929). And it is indeed in those cases where the civil courts had to deal with a claim based on art. 1382 and 1383 of the Civil Code that the docrine of criminal res judicata had most authority, the elements on which the civil court had to rely in order to find the existence of a wrong very often being the very ones on which the criminal court had relied in the reasoning of its decision and which had provided the necessary grounds. However, it had already been noted that this rule had only been applied in cases involving the offences of homicide and involuntary injuries, so that that the civil wrong of art. 1382 and 1383 of the Civil Code was identical to that of art. 221-6 and 222-19 of the New Criminal Code, but did not extend to other criminal wrongs.

A judgement of the First Civil Chamber of the Court of Cassation of 30 January 2001 (Bull. no. 19) seems to put this position radically into question, by holding that: “The fact that the criminal court declares that no unintentional criminal wrong exists does not mean that the civil court cannot find that there exists a civil wrong of lack of attention or negligence”. This judgement, which cites art. 1351, 1147 and 1383 of the Civil Code, quashes, for breach of these texts, the appeal judgement, which “to exempt Mr. J. of liability as defined by article 1383 of the Civil Code, holds that the civil wrong imputed to Mr. J. is of exactly the same nature as the criminal wrong underpinning the charge for which he was tried and exonerated, and that the civil court is bound to respect the authority of the res judicata by the criminal court”. See Jurisclasseur “Civil Liability”, Fasc. 221-20: “The Jurisdiction of Criminal Courts” (no. 13 et seq.) and further, Paulette Veaux-Fournerie, November 2001: “for some time now, the principle of the unity of civil and criminal wrongs has been criticised. However, even when certain of its consequences were softened, in particular as regards the authority of criminal res judicata over civil proceedings, this principle remained in force. And it is symptomatic to note that, during the reform of the Criminal Code, neither the Revision Commission nor Parliament wished to abolish the principle of the unity of wrongs. That is, however, what the law 2000-647 of 10 July 2000 seems to have striven to achieve, in the sense that 1) it abandons the unified concept of lack of attention in art. 121-3 of the Criminal Code, in which the “simple” wrong, giving rise to a liability based on a direct causal link, is distinguished from a “deliberate” wrong “ and a “gross” wrong (faute “caractérisé”) which exposes a third party to a particularly serious risk, both of the latter being grounds of liability based on an indirect causal link, and 2) it introduces into the Code of Criminal Procedure a new art. 4-1, according to which: “The absence of unintentional criminal wrong as defined by article 121-3 of the Criminal Code does not mean that an action cannot be brought in the civil courts in order to obtain damages for loss a) on the basis of article 1383 of the Civil Code, if the existence of the civil wrong defined by that article is established or b) pursuant to article L. 452-1 of the Social Security Code if the existence of the inexcusable wrong defined by that article is established”.

As for the Court of Cassation, which, moreover, did not base its decision on the new article 4-1, not yet applicable at the time it was sitting, a fact which undoubtedly imparts to its decision a maximum impact, it does seem to have proclaimed that civil and criminal wrongs are no longer one (Civ.1, 30 Jan. 2001, JCP G 2001, I, 338, no. 4, obs. G. Viney, RTD civ. 2001, p. 376, comments P. Jourdain), in general terms: A criminal court’s finding an absence of unintentional criminal wrong does not prevent a civil court from finding the existence of a wrong of lack of attention or negligence. This stand is unequivocal, because the judgement under attack (CA Rennes, 24 Sept. 1997), in order to free the helicopter pilot of civil liability pursuant to art. 1383 of the Civil Code once he had been discharged by the criminal court, clearly stated that the civil wrong of which he was accused was identical to the criminal wrong underpinning the charge according to which he had been summoned to the court and discharged, a civil court being bound to respect the re judicata by a criminal court. Amongst the lower courts, the Poitiers Court of Appeal (Ch. Corr., 2 Feb 2001: JCP G 2001, II, 10534, note Ph. Salvage), which was the first to hand down a decision on the application of the law of 10 July 2000, considered that “criminal wrong is henceforth disconnected from civil wrong”. As regards the application of the new art. 4-1 of the Code of Criminal Procedure in matters of health and safety at work, see Social Chamber, 12 July 2001, 28 March 2002 and others holding that “A criminal court’s finding that there is an absence of unintentional criminal wrong is no obstacle to the finding of an inexcusable wrong pursuant to article L. 452-1 of the Social Security Code”.

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