The application of the designated foreign law requires the judge to research the content of this law.
He must apply foreign law as a whole, case law and customs included. The Court of Cassation ( Cass. Civ. 1, September 18, 2002 ) affirmed ” that it is up to the judge seized of the application of a foreign law to proceed to its implementation and, in particular, to seek its content in order to settle the dispute according to this right “. ” It is up to the French judge who declares a foreign law applicable to seek by all means, if necessary by himself, the solution given to the disputed question by the law of the State concerned ” Cass. civ. 1, 13 November 2003
The trial judges must indicate the provisions of foreign law on which they are based ( Cass. Civ. 1 March 6, 2001 )
He violates, if he does not do so, article 3 of the Civil Code ;
The judge, who must verify the conformity of the evidence of foreign law produced by the parties to the reality of foreign law as it is applied in the country of origin, is nevertheless only bound by one obligation. of means.
He can get help from the parties, order an investigative measure, give injunctions and, if he is unable to report the content of foreign law, he can replace it with French law which retains a subsidiary vocation. .
A distinction must be made, on the one hand, between the motivation for the impossibility of finding the content of the foreign law, controlled by the Court of Cassation, and the lack of control of the application of the foreign law, including the judge. fundamentally determines what are the rules, legislative, customary or jurisprudential, on the other hand, what interpretation should be given, unless foreign law itself is distorted ( Cass. civ. 1 July 18, 2000 ).
Legal interpretation has a specific meaning when it relates to foreign law. The meaning of this law must be that assigned to it by the national authorities responsible for applying it.
1 st civil chamber, November 16, 2004
The court seized of a question of nationality implying to know if the parentage of the person concerned is established and on what date it was established, has the obligation, as regards status of persons and unavailable rights, to seek ex officio the competent law by application of the French conflict rule: in this case, by virtue of article 311-14 of the Civil Code, the personal law of the mother on the day of the birth of the child.