Article 48: Court's duty to record hearings

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 4047/2551 (2008)

   Although section 48(3) requires the court to record the place, date, and time of a proceeding, where an appellate court's proceeding is not conducted before the parties and its record must be read out by the trial court, the absence of a sitting time does not make the proceeding unlawful.

   The defendants argued that an appellate court record dated 29 January 2007 was unlawful because it did not state the time in the box for when the judge sat. The Supreme Court held that although section 48(3), applied through section 15 of the Criminal Procedure Code, requires the place, date, and time to be recorded, the appellate court's proceeding was not conducted before the parties and had to be read out by the trial court, so the appellate court could not state a sitting time. The record was therefore not defective on that ground.

2. Arrêt de la Cour suprême n° 8493/2551 (2008)

   A hearing record that does not show who attended or record the necessary proceedings, as required by section 48, is deficient, and this matters because non-appearance can lead to default consequences that must be documented.

   The trial court entered judgment for the plaintiff on the documents, but the record did not show, as required by section 48, what was done at the hearing, including which party attended and other necessary proceedings. The Supreme Court noted that it also did not appear whether the second defendant attended, which mattered because under section 193 bis paragraph two a defendant who fails to attend without seeking a postponement or explaining the obstacle is deemed in default, a consequence the record must reflect.

3. Arrêt de la Cour suprême n° 15984/2553 (2010)

   A record of proceedings in which the court notes that the parties have agreed to divorce is made in performance of the court's duty under section 48; it is not itself a written consent to divorce, and the judge or lay judge who signs it signs as the law requires, not as a witness. It therefore does not satisfy the witness requirement of Civil and Commercial Code section 1514 paragraph two.

   In an earlier case the plaintiff and defendant 1 had agreed to register a divorce and to withdraw their respective claims, and the trial court recorded that agreement in the report of proceedings; both withdrew, but the plaintiff never registered the divorce and later brought this action. The Supreme Court held that suing again was not an exercise of a right in bad faith, since there were new facts and different issues. On the substance it held that recording facts occurring during a sitting is the performance of the court's duty under section 48, so the report was not a written consent to divorce, and the signature of the judge or lay judge on it was given as the law requires and not as a witness, so it did not satisfy Civil and Commercial Code section 1514 paragraph two.

Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.