Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Seal Guard, Minister of Justice,
Having regard to the Constitution, including article 38;
Vu le Civil code ;
Vu le monetary and financial codeincluding article L. 211-1;
Vu le code of the judicial organizationincluding article L. 221-9;
Vu le Code of Civil Procedure ;
Vu la Act No. 2015-177 of 16 February 2015 concerning the modernization and simplification of law and procedures in the areas of justice and internal affairs, including articles 1 and 3;
The Council of State heard;
The Council of Ministers heard,
Order:
The Civil Code is amended in accordance with sections 2 to 14 of this Order.
I.-Section 267 is replaced by the following provisions:
"Art. 267.-In the absence of a treaty by the spouses, the judge shall rule on their requests for maintenance in the indivision, preferential allocation and advance by community or indivisible property.
"He shall rule on requests for liquidation and sharing of heritage interests, in the conditions set out in the Articles 1361 to 1378 of the Code of Civil Procedureif there is any justification for disagreement between the parties, including by producing:
"a joint declaration of acceptance of judicial sharing, indicating points of disagreement between spouses;
"-the project established by the notary designated on the basis of 10th of Article 255.
"It can, even on its own, decide on the determination of the matrimonial regime applicable to spouses. »
II.-Section 267-1 is repealed.
Chapter II of Book I IX is replaced by the following provisions:
“Chapter II
"From parental authority in respect of the property of the child
“Section 1
"From the legal administration
"Art. 382.-The legal administration belongs to the parents. If parental authority is exercised in common by both parents, each parent is a legal administrator. In other cases, the legal administration belongs to the parents who exercise parental authority.
"Art. 382-1.-When the legal administration is exercised in common by both parents, each of them is deemed, in respect of third parties, to have received from the other the power to make administrative acts on the property of the minor alone.
"The list of acts that are regarded as acts of administration is defined under the conditions of section 496.
"Art. 383.-Where the interests of the single legal administrator or, as the case may be, both legal administrators are in opposition to the interests of the minor, the latter request the appointment of an ad hoc administrator by the guardianship judge. In the absence of due diligence of the legal administrators, the judge may make such appointment at the request of the public prosecutor, the minor himself or ex officio.
"When the interests of one of the two legal administrators are in opposition to those of the minor, the guardianship judge may authorize the other legal administrator to represent the child for one or more specific acts.
"Art. 384.- shall not be subject to the legal administration of the property given or disposed of to the minor under the condition that they are administered by a third party.
"The third administrator has the powers conferred upon him by the gift, will or, if not, by a legal administrator.
"When the third administrator refuses this function or is in one of the situations provided for in articles 395 and 396, the guardianship judge shall designate an ad hoc administrator to replace it.
"Art. 385.-The legal administrator is required to provide prudent, timely and informed care in the minor's property management in the minor's sole interest.
"Art. 386.-The legal administrator is responsible for any damage resulting from any fault he commits in the management of the minor's property.
"If the legal administration is exercised in common, both parents are responsible in solidarity.
"The State shall be liable for any damages that may be caused by the guardianship judge and the chief clerk of the court of large instance in the exercise of their functions in the matter of legal administration, under the conditions laid down in article 412.
"The liability action is prescribed by five years from the majority of the individual or his or her emancipation.
“Section 2
“From the legal enjoyment
"Art. 386-1.-The legal enjoyment is attached to the legal administration: it belongs to either the parents in common or to the parents in charge of the administration.
"Art. 386-2.-The right of enjoyment ceases:
« 1° As soon as the child is sixteen years old or even earlier when contracting marriage;
« 2° Causes that end parental authority or those that end legal administration;
« 3° By the causes that lead to the extinction of all usufruit.
"Art. 386-3.-The charges of this enjoyment are:
« 1° Those to which the usufructiers are held;
« 2° The food, maintenance and education of the child, according to his fortune;
« 3° Debts encumbering the succession collected by the child as they should have been paid on the income.
"Art. 386-4.-The legal enjoyment does not extend to property:
« 1° May the child acquire through his work;
« 2° Who are given to him or given under the express condition that the parents will not enjoy it;
« 3° That he receive indemnification of an extra-patrimonial injury to which he was a victim.
“Section 3
"From the intervention of the guardianship judge
"Art. 387.-In the event of disagreement between the legal administrators, the guardianship judge is seized for the purpose of authorizing the act.
"Art. 387-1.-The legal administrator cannot, without the prior authorization of the guardianship judge:
« 1° To voluntarily sell a building or a trade fund owned by the minor;
« 2° Provide in society a building or trade fund owned by the minor;
« 3° Contract a loan on behalf of the minor;
"4° Renoncer for the minor to a right, transact or compromise in his name;
« 5° Accept purely and simply a succession returning to the minor;
« 6° Buying the property of the minor, taking them on bail; for the conclusion of the act, the legal administrator is deemed to be in opposition to the minor;
« 7° To freely establish a security right on behalf of the minor to guarantee the debt of a third party;
« 8° Conducting an act on securities or financial instruments within the meaning ofArticle L. 211-1 of the monetary and financial code, if the minor engages the heritage of the minor for the present or the future by a significant change in its content, a significant depreciation of its capital value or a lasting alteration of the minor's prerogatives.
"The authorization determines the conditions of the act and, if applicable, the price or the price for which the act has passed.
"Art. 387-2.-The legal administrator cannot, even with an authorization:
« 1° To free the property or rights of the minor;
« 2° Acquire a third party a right or a debt against the minor;
« 3° Carry out trade or a liberal profession on behalf of the minor;
"4° Transfer property or rights of the minor to a fiduciary heritage.
"Art. 387-3.-On the occasion of the control of the acts referred to in Article 387-1, the judge may, if he considers it indispensable for the protection of the interests of the minor, taking into account the composition or value of the heritage, age of the minor or his family situation, decide that an act or series of acts of disposition will be subject to his prior authorization.
"The judge shall be seized for the same purpose by the parents or any of them, the Public Prosecutor's Office or any third party who is aware of acts or omissions that clearly and substantially impair the heritage interests of the minor or of a situation of a nature that would cause serious harm to them.
"The third parties who have informed the judge of the situation are not responsible for the management of the minor's property by the legal administrator.
"Art. 387-4.-On the occasion of its control under sections 387-1 and 387-3, the judge may request the legal administrator that an inventory of the minor's heritage be forwarded to it and, each year, an updated inventory.
"A copy of the inventory is given to the minor who is sixteen years old.
"Art. 387-5.-On the occasion of the control referred to in the previous article, the judge may request the legal administrator to submit to the Chief Clerk of the Court of Grand Instance an annual management account, accompanied by supporting documents, for his verification.
"When an account has been requested, the legal administrator must submit to the Chief Clerk at the end of his or her mission a final account of the transactions that have occurred since the establishment of the last annual account.
"The Chief Clerk may be assisted in his audit mission under the conditions established by the Code of Civil Procedure. It may also request establishments with which accounts are opened on behalf of the minor an annual statement of the minor without the possibility of opposing professional secrecy or bank secrecy.
"If he refuses to approve the account, the Chief Clerk draws a report on the difficulties he has encountered, which he transmits to the judge. The latter determines the compliance of the account.
"If the importance and composition of the minor's heritage warrant it, the judge may decide that the verification and approval mission will be carried out, at the expense of the minor and in accordance with the terms and conditions fixed by a technician.
"A copy of the management accounts is given to the minor who is sixteen years old.
"The accountability, claim or payment action is prescribed by five years from the majority of the individual.
"Art. 387-6.-The legal administrator is required to refer to the summons of the guardianship judge and the public prosecutor and to provide them with any information they require.
"The judge may pronounce against him injunctions and condemn him to the civil fine provided for by the judge Code of Civil Procedure If he didn't show up. »
The title X of Book I is thus modified:
1° Its title is replaced by the title: "From the minority, guardianship and emancipation";
2° It has three chapters:
- Chapter I: "From the minority", which includes articles 388 to 388-2;
- Chapter II: “From Guardianship”, which includes articles 390 to 413;
- Chapter III: "From Emancipation", which includes articles 413-1 to 413-8;
3° In chapter I:
(a) Section 1: "From Legal Administration", which includes sections 389 to 389-8, is repealed;
(b) The title: "Section 2: Guardianship" is removed and sub-sections 1 and 2 of this section, respectively, become chapter II, sections 1 and 2.
Chapter I of Book I title X is amended as follows:
1° After article 388-1, two articles are inserted:
"Art. 388-1-1.-The legal administrator shall represent the minor in all acts of civil life, except where the law or use authorizes minors to act themselves.
"Art. 388-1-2.-A minor of sixteen years of age may be authorized, by his or her legal administrators, to perform only the acts of administration required for the creation and management of a limited liability individual enterprise or a unipersonal society. The acts of disposition may be carried out only by its or its legal administrators.
"The authorization referred to in the first paragraph shall be in the form of a private act or a notarial act and shall include a list of acts of administration that may be performed by the minor. » ;
2° In Article 388-2, the reference to Article 389-3 is replaced by the reference to Article 383;
3° Section 388-3 is repealed.
The new chapter II of Book I title X is thus amended:
1° Section 391 is replaced by the following:
"Art. 391.-In the event of a legal administration, the guardianship judge may, at any time and for serious reasons, either on his or her own or at the request of parents or allies or of the public ministry, decide to open the guardianship after hearing or calling, except urgently, the legal administrator. The latter may not make any provision from the application and until the final judgment except in the event of an emergency.
"If the guardianship is open, the guardianship judge summons the family council, which may either appoint as guardian the legal administrator or designate another guardian. » ;
2° In Article 392, the words: "in the terms of Article 389-2" are deleted;
3° The third paragraph of Article 411 is deleted;
4° After Article 411, it is added an article as follows:
"Art. 411-1.-The guardianship judge and the public prosecutor shall exercise general supervision over the guardianship of their jurisdiction.
"Tutors and other tutelary bodies are required to submit to their convocation and to provide them with any information they require.
"The judge may pronounce against them injunctions and condemn to the civil fine provided by the Civil Procedure Code those who have not referred to it. »
Section 413-5 is replaced by the following provisions:
"Art. 413-5.-The account of the administration, if any, or guardianship shall be returned to the minor emancipated under the conditions provided for by Articles 387-5 and 514 respectively. »
The second sentence of the third paragraph of Article 17-3 is replaced by the following:
"The incapacity is found by a certificate issued by a specialist doctor selected on a list prepared by the public prosecutor. This certificate is attached to the application. »
In Article 113, the words: "to the legal administration under judicial review as provided for for minors" are replaced by the words: "to the guardianship of the majors without family councils".
Chapter II of Book I title XI is supplemented by a section as follows:
“Section 6
"From family empowerment
"Art. 494-1.-When a person is out of state to demonstrate his or her will for one of the causes set out in section 425, the guardianship judge may authorize one or more persons chosen from among his or her relatives within the meaning of 2° of Article 1 of Law No. 2015-177 of 16 February 2015 to represent or pass any act or acts on its behalf under the terms and conditions set out in this section and in Title XIII of Book III that are not contrary to it, in order to safeguard its interests.
"The authorized person must meet the conditions to exercise the tutorial charges. It carries out its mission free of charge.
"Art. 494-2.-Family empowerment may only be ordered by the judge in the event of necessity and when it cannot be sufficiently provided to the interests of the person by the application of the rules of the common law of representation or by the stipulations of the future protection mandate of the person concerned.
"Art. 494-3.-The application for the designation of an authorized person may be submitted to the judge by one of the persons referred to in section 494-1 or by the public prosecutor at the request of one of them.
"The application is introduced, investigated and tried in accordance with the rules of Code of Civil Procedure and in compliance with articles 429 and 431.
"Art. 494-4.-The person in respect of whom the authorization is requested is heard or referred to in the manner provided for in the first paragraph of section 432. However, the judge may, by a specially reasoned decision and on the advice of the physician referred to in section 431, decide that it is not necessary to proceed with the hearing if it is of a nature to affect his or her health or if the person is out of state to express himself or herself.
"The judge shall ensure that, in the absence of a legitimate opposition to the measure of empowerment and the choice of the authorized person of the relatives referred to in section 494-1 who maintain close and stable ties with the person or who manifest interest in the person and who knows the existence of the person at the time of the decision.
"Art. 494-5.-The judge shall decide on the choice of the authorized person and the extent of the authorization by ensuring that the proposed device is in accordance with the heritage interests and, where applicable, the person concerned.
"Art. 494-6.-Enhabilitation may include:
"One or more of the acts that the guardian has the power to perform, alone or with authorization, on the property of the person concerned;
"One or more acts related to the person to be protected. In this case, the authorization is exercised in respect of provisions of articles 457-1 to 459-2 of the Civil Code.
"The authorized person may only perform an act of disposition free of charge with the authorization of the guardianship judge.
"If the person's interest in protecting the person involved, the judge may issue a general authorization covering all of the acts or one of the two categories of acts referred to in the second and third paragraphs.
"The person authorized under a general authorization cannot perform an act for which it would be in opposition to interests with the protected person. However, on an exceptional basis and where the interest of the judge imposes it, the judge may authorize the person authorized to perform the act.
"In the event of general authorization, the judge shall set a time limit on the device without the device being able to exceed ten years. Upon request of one of the persons referred to in section 494-1 or the public prosecutor seized at the request of one of them, he may renew the authorization when the conditions set out in sections 431 and 494-5 are met. The renewal may be pronounced for the same duration; However, where the alteration of the personal faculties of the person in respect of whom the authorization has been granted does not manifestly appear to be subject to improvement according to the data acquired from the science, the judge may, by specially reasoned decision and by the physician's notice referred to in section 431, renew the device for a longer period of time determined by the judge, not exceeding twenty years.
"The judgments granting, modifying or renewing a general authorization shall be marked on the margins of the birth certificate according to the conditions set out in section 444. The same is true when the authorization is terminated for one of the causes set out in section 494-12.
"Art. 494-7.-The authorized person may, unless the judge decides otherwise, proceed without authorization to the acts referred to in the first paragraph of Article 427.
"Art. 494-8.-The person in respect of whom the authorization has been granted shall retain the exercise of his or her rights other than those whose exercise has been entrusted to the person authorized under this section.
"However, in the event of general authorization, it cannot conclude a future protection mandate during the term of the authorization.
"Art. 494-9.-If the person in respect of whom the authorization has been granted passes only an act whose performance has been entrusted to the authorized person, the person shall be void of full right without the need to justify injury.
"The obligations resulting from the acts performed by a person in respect of whom a family empowerment measure has been imposed less than two years before the enabling judgment may be reduced or cancelled under the conditions provided for in section 464.
"The authorized person may, with the authorization of the guardianship judge, only initiate the action in nullity or reduction referred to in the above paragraphs.
"If the authorized person does, in this capacity, an act that does not enter the scope of the authorization that was issued to him or that could only be performed with the permission of the judge, the act is null and void without the need to justify any harm.
"In all cases, the action in nullity or reduction shall be taken within the five-year period provided for in Article 1304.
"During this period and as long as the enabling measure is under way, the contested act may be confirmed with the authorization of the guardianship judge.
"Art. 494-10.-The judge shall rule at the request of one of the persons referred to in Article 494-1 or the Attorney General of the Republic on the difficulties that may arise in the implementation of the device.
"The judge may, at any time, alter the scope of the authorization or terminate it, after hearing or calling the person in respect of whom the authorization has been granted, under the conditions set out in the first paragraph of section 494-4 and the authorized person.
"Art. 494-11.-In addition to the death of the person in respect of whom the family empowerment was granted, the person shall terminate:
« 1° By placing the person under judicial protection, under guardianship or under guardianship;
« 2° In the event of a forced release judgment pronounced by the judge at the request of one of the persons referred to in section 494-1 or the Attorney of the Republic, when it turns out that the conditions provided for in this article are no longer met or when the execution of the family empowerment is likely to affect the interests of the protected person;
« 3° Right in the absence of renewal at the expiry of the fixed period;
« 4° After the completion of the acts for which the authorization was granted.
"Art. 494-12.-The terms of application of this section are specified by decree in the Council of State. »
At 3° of Article 414-2, after the words: "for the purpose of opening a curator or guardianship", the words "or for the purpose of family empowerment" are inserted.
Section 424 is supplemented by a paragraph written as follows:
"The person authorized under the provisions of Chapter II, section 6, of this Title shall be responsible for the person represented for the exercise of the authorization conferred on him, under the same conditions. »
In the first and third paragraphs of Article 477, after the words: "guardianship" are inserted the words: "or family empowerment".
In the third paragraph of section 1304, after the words: "the heirs of the person in guardianship or in guardianship" are inserted the words: "or of the person under family authorization".
Article L. 221-9 of the Code of the Judicial Organization is supplemented by a 5° as follows:
« 5° Family empowerment provided for in chapter II, section 6, title XI of Book I of the Civil Code. »
For the purposes of this Order in French Polynesia:
1° In the first paragraph of Article 494-1 of the Civil Code, the words "and those of Title XIII of Book III that are not contrary to it" are deleted;
2° In the second paragraph of Article 494-3 of the Civil Code, the reference to Code of Civil Procedure is replaced by the reference to Code of Civil Procedure applicable locally;
3° In the fifth paragraph of Article 494-9 of the Civil Code, the words: "within the five-year period provided for in Article 1304" are replaced by the words: "within five years".
I. - This order comes into force on January 1, 2016.
II. - Section 2 of the Act applies to divorce applications filed prior to its entry into force which, on the day of its entry into force, did not result in an application for a proceeding.
III. - Sections 3 to 9 of the order are applicable to the legal authorities that are in effect on the day it comes into force.
The Prime Minister and the Seal Guard, Minister of Justice, are responsible for the application of this Order, which will be published in the Official Journal of the French Republic.
Done on October 15, 2015.
François Hollande
By the President of the Republic:
The Prime Minister,
Manuel Valls
The Seal Guard, Minister of Justice,
Christiane Taubira
