Although little known to the general public, opposition in civil proceedings is an essential part of our legal system. This remedy allows a party who is absent from a judgment to request that it be withdrawn. The scope of this remedy, which has been narrowed down over the years by a number of reforms, deserves to be explored.
Technical definition of opposition
Article 571 of the Code of Civil Procedure defines opposition as a remedy "which seeks to set aside a decision rendered by default". It is only available to the person in default - the person who was absent at the time of the judgment.
This technical definition distinguishes opposition from other legal mechanisms bearing the same name. These include :
- Opposition to marriage (articles 66 et seq. of the Civil Code)
- Stop payment by cheque (article L.131-35 of the French Monetary and Financial Code)
- Opposition to an order for payment
The latter, although similar, does not constitute an identical remedy but rather "a procedure for linking litigation proceedings" according to Solus and Perrot in their Treatise on private judicial law.
Legal nature: between ordinary channels and retraction
Opposition has two legal characteristics. It is :
- An ordinary remedy governed by articles 571 to 578 of the Code of Civil Procedure and by the provisions common to ordinary remedies (articles 528 to 537).
- This is a retraction procedure, unlike an appeal, which is a reversal procedure. It brings the case back before the same judge who handed down the contested decision.
This hybrid nature has given rise to debate. Some authors, including Cadiet and Jeuland, consider that opposition should be classified as an extraordinary remedy because it is only available in limited cases. But the legislature has classified it as an ordinary remedy, in particular because of its suspensive effect.
A history marked by successive restrictions
Opposition has evolved in fits and starts since it was first regulated by the Ordinance of April 1667.
The 1806 Code of Civil Procedure generously extended this right to all judgments rendered by default, whether at first or last instance. This generosity was criticised for encouraging delaying tactics.
The decree-law of 30 October 1935 marked a restrictive turning point by abolishing opposition to judgments by default for failure to conclude.
Decree no. 58-1289 of 22 December 1958 continued this restriction by limiting the category of decisions that could be challenged by this route. Only decisions rendered as a last resort, where the non-competing defendant could not be summoned in person, remained concerned.
Subsequent decrees (decree no. 65-1006 of 26 November 1965, decree no. 72-788 of 28 August 1972, decree no. 84-618 of 13 July 1984) introduced technical changes without reversing this restrictive trend.
Current position in the appeals system
Today, the opposition occupies a singular place, distinct from the appeal in several respects:
- Its scope is now very limited to judgments rendered by default (defined in article 473 of the CPC).
- It has a specific devolving effect: the case returns to the same court, unlike an appeal, which takes it to a higher court.
- It aims to restore the adversarial debate that had been prevented.
The 1972 Code of Civil Procedure enshrined this specificity by separating for the first time the provisions relating to judgments by default (articles 467 to 479) from those relating to opposition (articles 571 to 578).
The scope of this remedy, which was once wide open, has therefore been considerably reduced. Nevertheless, it remains a valuable tool for ensuring that the adversarial process is respected in specific situations.
This gradual restriction raises questions about access to the law. Are you planning to challenge a judgment handed down in your absence? A preliminary analysis is required to determine whether the opposition is admissible or whether other avenues should be pursued. Our firm is at your disposal to assess your situation and identify the most appropriate strategy.
Sources
- Code of civil procedure, articles 571 to 578
- Répertoire de procédure civile, Marie-Emma BOURSIER and Élisabeth BOTREL, "Opposition", March 2014, Dalloz.
- SOLUS and PERROT, Treatise on private judicial lawt. 3, Procédure de première instance, 1991, Sirey
- CADIET and JEULAND, Private judicial law8th ed. 2013, LexisNexis
- Decree no. 58-1289 of 22 December 1958, JO 23 December
- Decree no. 65-1006 of 26 November 1965, JO 2 December
- Decree no. 72-788 of 28 August 1972, JO 30 August
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