Civil Procedure Reform: The Art of Perpetual Change (2023)

"We govern badly when we govern too much" wrote Portalis in his famous preliminary speech on the first draft of the civil code. No doubt he would raise his eyebrows when he discovered the regulatory frenzy that has taken hold of our time. A decree n ° 2020-1452 of November 27, 2020, published in the Official Journal on Saturday November 28, 2020, comes for example to modify once again the rules of civil procedure. Etienne Gastebled, lawyer at the Paris bar, partner at Lussan, lists and analyzes the main changes contained in this text.

Civil Procedure Reform: The Art of Perpetual Change (1)

In these difficult times, you probably expected the Chancellery to show enough concern for you to spare you yet another avatar.indigestible decreesof which it has secrecy in matters of civil procedure.

This expectation will most certainly be disappointed on reading thedecree n°2020-1452 of November 27, 2020, published in the Official Journal on Saturday November 28, 2020, containing various provisions relating in particular to civil procedure and the procedure for compensating victims of acts of terrorism and other offences. If the intention at the origin of this text is commendable, since it comes in particular to correct a series of imperfections that included thedecree n°2019-1380 of December 17, 2019reforming civil procedure, it nevertheless constitutes the archetype of the particularly painful regulatory text for the practitioner to integrate into his practice: five pages of modifications, additions or deletions concerning scattered areas of civil procedure.

Certain deletions or modifications, if they were undoubtedly desirable, relate to provisions which are less than a year old. Barely time to integrate them into your thinking, they have already disappeared. It is therefore a feeling of legal insecurity that emerges from this new text affecting the rules applied on a daily basis by legal litigation professionals.

This decree in fact covers a series of subjects that are sensitive to say the least: the procedures for initiating proceedings, the option and procedures for procedures without a hearing, provisional execution in certain areas or even the declaration of appeal. . With regard to compensation for victims of acts of terrorism, it modifies the rights and guarantees of victims during the medical examination carried out at the request of the Guarantee Fund for victims of acts of terrorism and lightens the formalism of the notifications which are sent to the latter by the compensation commissions for victims of offences.

This article will limit itself to a brief presentation of the main changes introduced by this text to the rules of civil procedure, without addressing questions relating to the procedure for compensating victims of acts of terrorism and other offenses which deserve , from our point of view, a specific and distinct comment.

The introduction of the proceedings

The second paragraph of Article 54 of the Code of Civil Procedure, according to which the initial request formed by summons or by motion must include, on pain of nullity, when it is formed by electronic means, theapplicant's email address and mobile phone numberor his lawyer, isdeleted. This provision, introduced by Decree No. 2019-1333 of December 11, 2019, but highly contested by lawyers, will therefore have existed for less than a year.

In addition, 6° of article 54 of the code of civil procedure which provides, in the initial request (in the form of summons or request), the indication of the modalities of appearance before the court and the precision that at failure for the defendant to appear, he exposes himself to a judgment being rendered against him on the sole elements provided by his adversary, is deleted. The obligation to include this mention reappears by the addition of a 4° to article 56 of the code of civil procedure which is however applicable only to summons (and not to requests).

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Before the court, it will be necessary, in order to obtain a hearing date from the registry, to presentan assignment project. Article 751 of the Code of Civil Procedure now provides that “the request made by summons is brought to a hearing, the date of which is communicated by the registry to the applicant upon presentation of the draft summons". Thisnew bondseems enoughunsuitablesituations in which the lawyer is seized urgently by his client only one or two days before the expiry of the limitation or foreclosure periods.

Article 754 of the Code of Civil Procedure, relating to the procedures for submitting a copy of the summons to the registry, is also amended:

*provided that the date of the hearing is communicated more than fifteen days in advance, the postponement must be made at least fifteen days before this date, whatever the methods of its communication by the registry;

*when the date is communicated electronically, delivery must be made within two months of this communication.

It's about awelcome clarificationobligations in this regard.

The same applies to the clarification in article 763 of the code of civil procedure, which provides for the obligation to appoint a lawyer within fifteen days of the summons, that if the summons is issued to the defendant within a period less than or equal to fifteen days before the date of the hearing, he may act as a lawyer until the hearing.

Appeal from decisions rendered by the judgment panel of the judicial court on pleas of inadmissibility

Thedecree n°2019-1380 of December 17, 2019established, toarticle 789 of the code of civil procedure, the exclusive jurisdiction of the pre-trial judge to hear pleas of inadmissibility, subject to the hypothesis in which the plea of ​​inadmissibility requires that a question of substance be decided beforehand. In this case, the pre-trial judge is in principle competent to rule on this substantive issue and on this plea of ​​inadmissibility, unless one of the parties objects. The end of inadmissibility and the substantive issue are then decided by the court formation.

Article 795 of the Code of Civil Procedureis amended so as to submit the decisions of the court formation rendered in this context to the rules applicable to appeals lodged against the decisions of the pre-trial judge. Therefore, the decisions of the court formation on pleas of inadmissibility, involving a question of substance, are not subject to opposition. They may, however, be appealed within fifteen days of their notification.

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The procedure without a hearing

The procedure without a hearing is clarified and extended.

Article 828 of the civil procedure codeIt now has that:

“In this case, the judge organizes the exchanges between the parties. They formulate their claims and their means in writing. Communication between them is made by registered letter with acknowledgment of receipt or by notification between lawyers and this is justified to the judge within the time limits he sets. The judge sets the date before which the parties must communicate their claims, pleas and exhibits to the registry. On this date, the registry informs the parties of the date on which the judgment will be rendered. This is contradictory”.

The possibility of ruling without a hearing is extended in matters of summary proceedings before the court (art. 836-1), accelerated proceedings on the merits before the court (art. 839) and fixed-day proceedings before the court (art. .843).

In three articles of the decree, the regime applicable to procedures without a hearing is thus extended to procedures where the oral nature of the debates, required in particular by urgency, is nevertheless consubstantial with them. It should be remembered that the ability to evade the oral nature of the debates in emergency procedures has been tested in the circumstances dictated by the Covid crisis. It is regrettable that the eagerness shown by the public authorities, probably guided by purely material considerations linked to the backlog of the courts, deprives us of an in-depth discussion on the central place of orality in the judicial debate.

Furthermore, the decree clarifies and extends the regime applicable to proceedings in which the judge exempts a party from appearing at a subsequent hearing, in particular before the commercial court (art. 861-1).

On the appointment of a lawyer before the commercial court

The third paragraph ofarticle 853 of the code of civil procedureprovides that the parties are exempted from the obligation to appoint a lawyer when the request relates to an amount less than or equal to 10,000 euros. This exemption is extended to the hypothesis in which the request “originates from the performance of an obligation the amount of which does not exceed 10,000 euros". This is a harmonization with the rules applicable before the court of law (art. 761).

The appeal procedure

Article 901 of the Code of Civil Procedurewhich provides for the mandatory information that must appear on pain of nullity in the notice of appeal is amended so as to remove the obligation to indicate, in the notice of appeal, the documents on which the appellant's request is based . We can only welcome the removal of what constituted pointless nonsense.

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The new wording of Article 901 now expressly refers, under the mandatory information of the notice of appeal, to 2° of Article 54 relating to the subject of the request. One might wonder whether this express reference adds to the current text. However, we do not think so insofar as the current wording of article 901 imposes compliance with all the particulars prescribed by article 57 which itself refers, in its second paragraph, to the particulars set out in Article 54, and therefore to the mention of the subject of the request.

The procedure by which the Court or the magistrate responsible for investigating the case exempts a party from appearing at a subsequent hearing is specified (art. 946).

The regime of article 905 of the code of civil procedure(briefly) is applicable to decisions rendered by the court formation, in the process of being pre-trial, on a question of substance and a plea of ​​inadmissibility pursuant to the ninth paragraph of article 789.

Finally, the scope of the referral to the Court of Appeal is reduced. Article 916 of the currently applicable Code of Civil Procedure extends the referral to orders which rule "on a procedural exception, on an incident putting an end to the proceedings, on the plea of ​​inadmissibility drawn from the inadmissibility of the appeal or the lapse thereof or on the inadmissibility of the pleadings and procedural documents pursuant to Articles 909, 910 and 930-1”. The decree of November 27, 2020 excludes from the scope of the referral the orders ruling on the inadmissibility of the conclusions and procedural documents pursuant to Articles 909, 910 and 930-1 of the Code of Civil Procedure. Disputes relating to the time limit for concluding an appeal or for filing an incidental or provoked appeal are therefore excluded from the referral system.

Provisional execution

Article 1045 of the Code of Civil Procedure provides, since Decree No. 2019-1333 of December 11, 2019, that "the judgment ruling on nationality is not provisionally enforceable", a formulation which nevertheless offered the judges the possibility of pronouncing the provisional execution. This option is removed. It is now specified that the judgment on nationality “cannot be accompanied by provisional execution”.

Furthermore, the ability of the judge to pronounce provisional execution is reaffirmed in several areas:

*cancellation and judicial rectification of civil status records (art. 1054-1);

*procedures relating to the first name (art. 1055-3);

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*modification of the mention of sex in civil status records (art. 1055-10);

*adoption (art. 1178-1);

*declaration of absence (art. 1067-1);

*filiation and subsidies (art. 1149);

*decisions of the family court judge which terminate the proceedings (art. 1074-1).

There is nothing new, but the adoption of clearer wording.

Entry into force of the new provisions

The aforementioned provisions will enter into force on 1isJanuary 2021.

They apply to proceedings pending on that date, with the exception of the provisions on the appointment of a lawyer before the commercial court (amendment to article 853) and judgments on nationality (amendment to article 1045 ) which apply to proceedings brought on or after 1isJanuary 2021.

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As you will have understood, once again, the Chancellery has particularly spoiled us as the end-of-year celebrations approach by offering us only one month to integrate all of these new features!

From the same author, also read with regard to previous reforms:The new procedure at the bottom in full schuss mode!etThe essentials of civil procedure reform in six points


What reforms should be made to the legal system? ›

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What are the other three stages of civil litigation that cases usually go through in addition to discovery? ›

Civil lawsuits generally proceed through distinct steps: pleadings, discovery, trial, and possibly an appeal.

What is the process used in a civil law suit to develop material for their case? ›

In civil actions, the discovery process refers to what parties use during pre-trial to gather information in preparation for trial. The Federal Rules of Civil Procedure have very liberal discovery provisions.

What is the earliest you can serve discovery? ›

You must complete discovery 30 days before your trial

If you are the plaintiff, you can begin discovery 10 days after you serve the first papers in the case or anytime after the defendant files a response. If you are the defendant, you may begin discovery as soon as the case is filed.

What are the 4 types of reform? ›

4 Types of Economic Reforms in Various Sectors
  • Structural Reforms Initiatives:
  • Fiscal Reforms:
  • Infrastructure Reforms:
  • Capital and Money Market Reforms:

What are the 5 reforms? ›

Reforms on many issues — temperance, abolition, prison reform, women's rights, missionary work in the West — fomented groups dedicated to social improvements. Often these efforts had their roots in Protestant churches.

What percentage of cases end up reaching a settlement? ›

You may have heard about how many criminal cases are settled without a trial. It's true, more than 94% of criminal cases are resolved through a plea bargain rather than going to trial.

What is the most likely outcome in a civil case if the defendant fails to answer the complaint? ›

Failure to Respond: If a defendant fails to answer the complaint or file a motion to dismiss within the time limit set forth in the summons, the defendant is in default. The plaintiff can ask the court clerk to make a note of that fact in the file, a procedure called entry of default.

How long after deposition will they settle? ›

All in all, your legal team and the team of the opposing party may reach a settlement several weeks or months after deposition. However, deposition can also sometimes lead to a lawsuit; it all depends on the specifics of your case.

What types of evidence can be legally obtained during the discovery process? ›

The basic rule of discovery is that a party may obtain any information that pertains -- even slightly -- to any issue in the lawsuit, as long as the information is not "privileged" or otherwise legally protected (see "Discovery Limits," below).

How do you know if your deposition went well? ›

You know your deposition is going well if you are answering questions to the best of your ability according to the advice of counsel. Your lawyers are there to protect your interests and object to questions you should not answer.

What are the two sides in a civil case called? ›

parties - Plaintiffs and defendants (petitioners and respondents) to lawsuits, also known as appellants and appellees in appeals, and their lawyers. petit jury (or trial jury) - A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute.

What is the Rule 26f? ›

Rule 26(f) describes a conference of two parties (the plaintiff and defendant) to cooperate and set out a clear plan for the process of discovery. In terms of responsibility for arrangement, both parties are jointly responsible—and this remains true as the case progresses.

What is the Federal Rules of Civil Procedure rule 34? ›

Rule 34 of the Federal Rules of Civil Procedure provides for discovery and inspection of documents and things in the course of developing a case for trial. Subsection (b)(1)(A) states that the request must “describe with reasonable particularity each item or category of items to be inspected.” See Fed. R. Civ.

What is the Federal Rule of Civil Procedure 33? ›

Interrogatories to Parties (a) In General. (1) Availability. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.

What are 5 progressive reforms? ›

This idea included major reforms such as direct primaries, campaign finance, civil service, anti-lobbying laws, state income and inheritance taxes, child labor restrictions, pure food, and workmen's compensation laws.

What are 3 reform movements examples? ›

Key movements of the time fought for women's suffrage, limits on child labor, abolition, temperance, and prison reform.

What were the 7 reform movements? ›

The reform movements that arose during the antebellum period in America focused on specific issues: temperance, abolishing imprisonment for debt, pacifism, antislavery, abolishing capital punishment, amelioration of prison conditions (with prison's purpose reconceived as rehabilitation rather than punishment), the ...

What are the six key elements of reform? ›

 What are six common components of state reform efforts? o The six components of state reform efforts are high standards and accountability, authentic assessment, active learning(constructivism), a sense of community, lifelong learning, and reclaiming character education.

What are the three waves of reform? ›

Three Waves of Education Reform: Internal, Interface, and Future.

What were the 3 most defining progressive movement reforms? ›

These reformers favored such policies as civil service reform, food safety laws, and increased political rights for women and U.S. workers.

Why do judges prefer settlements? ›

Settlement allows the parties to control the outcome of the case. The outcome of a trial is never certain. Even if your case appears to be a “slam dunk”, it is still possible for a jury to find for the defendant, or award much less than your case is fairly worth. Settlement allows you to avoid the risks of trial.

At what stage do most lawsuits settle? ›

Most Civil Cases Settle Prior To Trial
  • Cases Settle When the Client Agrees that the Offer is Reasonable. ...
  • A Lawyer Cannot Guarantee a Favorable Outcome in a Litigated Personal Injury Claim. ...
  • Lawyers Try their Level Best in a Trial, but a Client Should have Realistic Expectations of Recovery in a Personal Injury Claim.

Why do lawyers prefer out of court settlements? ›

Generally, settling out of court yields better results for clients than going to trial. To this end, think about the benefits mentioned above: settling is faster, cheaper, results in less stress, and can help you get on with your life much more quickly than otherwise. For attorneys, this is a win-win situation.

What is the most damaging evidence that can be admitted against a defendant? ›

295-302. (a) A defendant's confession is like no other evidence. It is probably the most probative and damaging evidence that can be admitted against him, and, if it is a full confession, a jury may be tempted to rely on it alone in reaching its decision.

Can a civil lawsuit ruin your life? ›

Do you realize that a lawsuit can ruin your life? Lawsuits and judgments where even small amounts of money are involved can force you to sell one or more properties, essentially making all the work you've done worthless.

Who bears the burden of proof in a civil case? ›

In civil cases, the plaintiff has the burden of proving their case by a preponderance of the evidence, which means the plaintiff merely needs to show that the fact in dispute is more likely than not.

What should you not say during a deposition? ›

Speaking in Absolutes

Using terms like “never” and “always” in your deposition answers may do more harm than good. Answering questions with these terms may make it sound like you are being definitive about various topics.

What's next after the deposition? ›

After the deposition is taken, the parties involved will review the transcript and may use it to negotiate a settlement. If the parties are unable to reach a settlement, the case will proceed to trial, where the deposition transcript can be used as evidence.

How do you answer tricky deposition questions? ›

What follows are numerous points or rules to keep in mind throughout the deposition.
  1. Tell the truth. ...
  2. Think before you speak. ...
  3. Answer the question. ...
  4. Do not volunteer information. ...
  5. Do not answer a question you do not understand. ...
  6. Talk in full, complete sentences. ...
  7. You only know what you have seen or heard. ...
  8. Do not guess.

What types of evidence are not allowed? ›

Inadmissible evidence

Forms of evidence judges consider inadmissible include hearsay, prejudicial, improperly obtained or irrelevant items. For example, investigators use polygraph tests to determine whether a person is lying about the events of a case.

What information is not discoverable? ›

As noted previously, the law holds that documents made in preparation for litigation, under a general plan directed by an attorney, will not be discoverable. This means that the opposing party is not entitled to see the documents or to have them admitted in evidence.

What is a common outcome that comes from the discovery process? ›

The information gathered during the discovery process can determine the outcome of the case at trial. What is learned about a claim or a defense through discovery can compel a party to settle a claim or affect the amount offered in order to settle it.

Can you say I don't know in a deposition? ›

So what happens if you're in your deposition and you don't know the answer to a question, what happens, what do you do? That's perfectly acceptable and all you should say is “I don't know.” If you don't remember, you say, “I don't remember,” and that's in fact what you should do.

Do you have to tell the truth in a deposition? ›

Since a deposition is considered sworn testimony, you are expected to answer each question and tell the truth.

Can you refuse to answer in a deposition? ›

The rules for depositions vary by state and in federal court, but generally, the deponent must answer every question presented, regardless of objection, unless the answer is protected by a privilege or a court order. A deposition will usually be taken before a court reporter authorized to administer oaths.

What do lawyers say in court when they don't agree? ›

Objection. Objection to the form, your Honor. Objection, your Honor, leading.

What is writ of habeas corpus? ›

A writ of habeas corpus orders the custodian of an individual in custody to produce the individual before the court to make an inquiry concerning his or her detention, to appear for prosecution (ad prosequendum) or to appear to testify (ad testificandum).

Which element of a civil case comes first? ›

A lawsuit begins when the person bringing the suit files a complaint. This first step begins what is known as the pleadings stage of the suit. Pleadings are certain formal documents filed with the court that state the parties' basic positions.

What is rule 69? ›

A Rule 69 Agreement allows the parties to settle some or all of their disputes privately, leaving only the unresolved issues to be resolved by the family law court. Common disputes settled ahead of divorce trial proceedings are visitation, parenting time, child support, and how to divide assets.

What is rule 27 mean? ›

A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party.

What is Federal rule 51? ›

A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection.

What is rule 49 in federal Civil Procedure? ›

A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue.

What does Rule 34 mean in court? ›

Currently, Rule 34(b) requires the defendant to move to arrest judgment within seven days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within some other time set by the court in an order issued by the court within that same seven-day period.

What is rule 39? ›

- In all actions not triable of right by a jury the court upon motion or if its own initiative may try any issue or question of fact with an advisory jury or the court, with the consent of the parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

What is 37 of the Federal Rules of Civil Procedure? ›

Rule 37 authorizes the court to direct that parties or attorneys who fail to participate in good faith in the discovery process pay the expenses, including attorney's fees, incurred by other parties as a result of that failure. Since attorneys' fees cannot ordinarily be awarded against the United States (28 U.S.C.

What is Rule 25 Federal Rules of Civil Procedure? ›

Rule 25-Substitution of Parties. (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.

What is Rule 54 B Federal Rules of Civil Procedure? ›

Rule 54(b) and Finality

Under Rule 54(b), when an action presents more than one claim for relief, a district court “may direct the entry of a final judgment as to one or more, but fewer than all, claims upon determination that 'there is no just reason for delay.

How could the legal system be improved? ›

promoting education and training for judges and court personnel, improving judicial ethics and accountability, and. strengthening court administration, efficiency and transparency.

How can the legal system be improved? ›

Criminal Justice Policy Solutions
  1. Promote Community Safety through Alternatives to Incarceration. ...
  2. Create Fair and Effective Policing Practices. ...
  3. Promote Justice in Pre-Trial Services & Practices. ...
  4. Enhance Prosecutorial Integrity. ...
  5. Ensure Fair Trials and Quality Indigent Defense. ...
  6. Encourage Equitable Sentencing.

What are 3 examples of reform movements? ›

Key movements of the time fought for women's suffrage, limits on child labor, abolition, temperance, and prison reform.

What are the 3 most important legal influences on our legal system today? ›

The laws from both the federal and state legal systems stem from three pri- mary sources: the Constitution, statutes, and common law. Although constitutional laws are relatively small in number, they are important because they protect rights that we as a society have found to be of fundamental importance.

What do you see as the biggest problem facing the legal system today? ›

“The largest challenges the modern criminal justice system faces today includes violence against women, the addiction epidemic, and lack of trust between peace officers and citizens.

What are the main flaws of the legal system in the USA? ›

Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors. 1. Unconstitutional overcriminalization.

How can we reform the justice system? ›

  1. Cost-Benefit Analyses of Pretrial and Sentencing Practices. ...
  2. Setting Fines and Fees Based on Ability to Pay. ...
  3. Hold Prosecutors Accountable for Filing and Plea-Bargaining Decisions. ...
  4. Reconsider Probation and Parole Practices that Contribute to Mass Incarceration.

What are 3 goals of the legal system? ›

To enforce the law and defend the interests of the United States according to the law, to ensure public safety against threats foreign and domestic, to provide federal leadership in preventing and controlling crime, to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial ...

What are at least 3 of the goals we expect our legal system to achieve? ›

In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo, (3) preserve individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide for orderly social change. Some legal systems serve these purposes better than others.

What is the best legal system in the world? ›

  • United Kingdom. #1 in Well-developed legal framework. ...
  • Germany. #2 in Well-developed legal framework. ...
  • Denmark. #3 in Well-developed legal framework. ...
  • Switzerland. #4 in Well-developed legal framework. ...
  • United States. #5 in Well-developed legal framework. ...
  • Canada. #6 in Well-developed legal framework. ...
  • Norway. ...
  • France.

Which reform movement was the most successful? ›

The abolition of slavery was one of the most powerful reform movements. Quakers and many churches in New England saw slavery as an evil that must be abolished from society. They targeted slave owners who profited off of enslaved people's labor.

What are basic reforms? ›

Reform consists of changes and improvements to a law, social system, or institution. A reform is an instance of such a change or improvement.

What are the 4 dominant legal systems today? ›

Types of Legal Systems

Among the main groups that you might encounter are: 1) common law; 2) civil law; 3) religious law; and 4) customary law.

Is the U.S. civil or common law? ›

Most countries use the civil law system, but the United States uses the common law system.

What are the disadvantages of the civil law system? ›

Lack of Judicial Discretion: Civil law places less emphasis on judicial discretion compared to common law systems. This can limit the ability of judges to consider individual circumstances and exercise flexibility in decision-making.


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