Posted at 12.15.2018
The Continental and Civil Law Legal Systems can be truly regarded as the most prominent legal systems on the planet which laid a base for legislation in many countries. Although, nowadays it could be quite difficult to discover a recognized boundary between Continental and Common Laws Legal Systems (as they have got used each other's procedures to a large level), the legal scholars explain the set of criteria that will be employed to differentiate between those two legal systems. For example, some scholars suggested "culture" or "language" to be used for classification. Others insisted that this must be ideology which stipulates peculiarities of Continental and Common Laws Legal Systems. However, most of the scholars do concur that historical qualifications and types of the options used will be the most objective standards.
The Continental Regulation Legal System takes its origin in Roman Laws in occasions when it was first codified by Roman emperor Justinian. Justinian's work resulted in compilation called Corpus Juris Civilis. The actual fact that Corpus Juris Civilis was a main object for research in the Italian universities of Renaissance period enabled the Roman Laws to multiply over the rest of Europe and greatly impact Western legal systems. The result of such affect was a continued traditions of codification during the age of enlightenment (in XVIII century) when independent national codes like the French Napoleonic Code, German and Swiss rules were developed.
The Continental Law Legal System has been created under the influence of legal scholars whose legal doctrines became a basis for rules. Therefore, it is commonly accepted that civil regulation originated in the universities alternatively than in courts. Quite simply, the written guidelines such as legislative statutes have been the key source of legislations in civil laws countries. It really is precisely this proven fact that explains a lower life expectancy judge's role in Continental Rules Legal System. Since a civil judge has to apply already existing codes for resolving cases instead of expressing his judicial views there is much less importance mounted on a civil judge's merit as opposed to his common counterpart.
Common or British Legal System was initially developed in Great britain and Wales. It was later used by many countries throughout the world consequently of English colonisation. Australia, South East Asia, India and Hong Kong are the countries with "received" common tradition. The Common Rules Legal System has been developed out of unwritten rules and customs. In common countries the circumstances are resolved by "judge-made decisions" which follow the process of stare decisis, i. e. "to choose similar cases likewise". This fact explains the importance of case legislations as, the burkha source of British Legal System.
Procedural and Substantive Law
Procedural and Substantive Laws are two branches of law which cannot function individually from each other.
Substantive Law serves as a a body of rules which sets out the protection under the law and responsibilities of customers of society. Alternatively, Procedural Law includes legal guidelines to enforce and protect such privileges and obligations. For example, it is a substantive legislations that defines murder as a criminal offence. In the meantime, the Procedural Legislation describes what sort of arrests have to be made, witnesses are questioned and evidences are accumulated.
Civil Laws and Civil Process versus Criminal Law and Offender Procedure
Civil Laws is a kind of private legislations and includes the romantic relationships between individual individuals The Civil legislation attempts to solve disagreements between individuals or organizations also to provide remedies. It ought to be emphasized that unlike unlawful rules, the civil law does not plan to punish the offender. Deal disputes, property disputes, divorce cases, infant custody and other private issues are the issues controlled by Civil Law.
Criminal law is a branch of law which concerns offences committed against the general public authority. In contrast to Civil law where in fact the remedy normally takes the form of settlement or fine, the offender in unlawful proceeding can be punished by imprisonment, federal government supervision, lack of liberty, fine and even execution.
The civil and criminal procedures will vary in conditions of claimants getting the case into courtroom and parties involved in the trial process. Civil proceeding is initiated by the plaintiff represented either by an individual or an organization which strives to secure a financial compensation for incurred damages. By contrast, any unlawful proceeding is enforced by the state through the prosecutor. This is really because any criminal offense against a person is known as to be an offence to the modern culture.
The prosecutor prepares evidences and charges from the accused criminal. Therefore, the responsibility of proof is situated solely after the prosecutor, which means that the prosecutor is responsible for providing evidences resistant to the defendant. On the other hand, the plaintiff is the only real person to have the burden of confirmation in civil situations. Whereas it will do for plaintiff in civil process to persuade that the wrongdoing was more likely to take place somewhat than not, the prosecutor comes with an obligation to demonstrate that the crime was committed with no doubts. In other words, the standard of substantiation in civil and criminal procedures is different: civil conditions must be proven on the balance of probabilities and criminal conditions - beyond a reasonable doubt.
In truth, the offence might be legal and civil violation at the same time. For example, in case of car accident when there is an injured person, the drivers is at the mercy of criminal as well as civil procedure.
Civil procedure in keeping and Continental Legal Systems
The significant dissimilarities in civil method of Common and Continental Legal Systems are stipulated mainly by the adherence either to the so-called "inquisitorial" or "adversarial" systems. Despite the fact that there were a lot of borrowings just lately in both systems, "inquisitorial" custom is broadly thought as a prerogative of Continental Laws studies, whereas Common Law trials follow "adversarial" system.
One of the factors which describe the substantial differences in civil methods of Common and Continental Legal Systems is a judge's role. In civil technique governed by continental custom the judge examines the evidences, questions the witnesses and prepares report, i. e. adjustments all areas of the trial. In the meantime, the role of judge in common civil procedure is that of a unaggressive observer listening to the arguments and evidences offered both by the plaintiff and a defendant. Therefore, a Continental Law judge bears more responsibility for the trial somewhat than his Common Regulation counterpart.
Another point of divergence in civil technique of Common and Continental Legal Systems is the stages of jurisdiction. In continental civil process these stages can be defined as preliminary stage, evidence-taking level and decision making level. As possible noticed, the continental civil process never includes the trial stage which is sometimes a part of civil procedure in Common Legal System. This is explained by the actual fact that in Common Legal System the trial is thought to be a final level which necessarily carries a jury. Therefore, under such definition the trial does not can be found in continental civil process. Rather than the trial the continental civil technique consists of "a series of isolated conferences and written communications between counsel and the judge"
The next important difference concerns an evidence-taking level. As a matter of known fact, the common legal professional is obliged to formulate the complete case at the very beginning which is an abnormal practice for civil legal professionals who prepares only some bits of proof for the first appearance prior to the court. Consequently, the amount of importance designated to discovery process is a lot less in continental civil procedure rather than in keeping.
Although in continental civil process the judge is straight mixed up in evidence-taking part of the proceeding, the situation should be solved by other judges. On the other hand, the study of evidences and the image resolution of civil circumstance are direct obligations of an individual judge in keeping law tradition.
The continental and common civil process uses written and dental arguments respectively. For instance, during the see testimony in common civil treatment the questions are asked orally by the advocates of both people, whereas it is compulsory for the continental advocate to propose a question in written form to judge who is able to either admit or reject it. This example illustrates not only the difference in keeping and continental civil technique in conditions of oral or written arguments but also in the presence of cross-examination. In other words, cross-examination does not take place in continental civil treatment.
Civil procedures in keeping and Continental Legal Systems differ in conditions of get-togethers who incur counsel fees. Within the former case, aside from England, counsel fees must be paid by each get together regardless of the case's outcome. Alternatively, in civil law countries, the loser covers the winner's counsel fees.
Criminal procedure in keeping and Continental Legal Systems
A lot of dissimilarities in civil procedure of Common and Continental Legal Systems talked about above can be applied to criminal treatment as well. The reason beyond this is what custom, adversarial or inquisitorial, the Legal System follows. For instance, the role of impartial referee designated to the judge in common civil method is the same for judge in common criminal procedure. Additionally, in both continental civil and legal conditions the judge acts as an inquisitor. Furthermore, the see testimony in unlawful technique of both legal systems practices the same structure just as civil method. However, there are some distinctive dissimilarities which exclusively determine criminal method in Common and Continental Legal Systems.
First of all, the criminal case in Common Legal System is initiated by the wronged person, his family or any other person in the contemporary society. A presiding officer is appointed then to listen to and decide the case. By contrast, the private accuser in continental criminal procedure is substituted by public standard, who represents the State's passions. In other words, the competition has shifted from two individuals to a person and their state.
Secondly, the difference can be found in examining phase of legal proceeding. At this time the evidences are accumulated accompanied by compilation of the dossier. While it is allowed to disclose the dossier to the protection in continental legal proceeding it is prohibited in keeping legal proceeding.
Thirdly, in keeping criminal technique the defendant must be sworn and can not won't answer while being questioned. On the other hand, this practice is not put on legal justice system in continental countries where in fact the case is strictly the opposite.
Another important difference in unlawful treatment of Common and Continental Legal Systems is plea bargaining. As opposed to common criminal process where plea bargaining is a distinctive feature, the prosecutor ability is bound in continental countries. Furthermore, in keeping countries "the defendant who pleads guilty forgoes a trial". In civil countries, however, the plea guilty is not really a hard proof for defendant's guilt. Therefore, the trial necessary occurs.
Finally, it is wrongly presumed that there are no principles of jury trial and presumption of innocence in civil unlawful proceedings. Actually, "a legal presumption of innocence does can be found in many civil rules jurisdictions", although in some civil countries it may not exist as a formal guideline of law. In the same way, the jury trial is replaced with lay advisers. However, the verdict of place advisers is not necessarily a conclusive ruling for the accused to be accused or acquitted.
In conclusion, I'd like to state that as the world will move toward globalization the edges between Continental and Common Legislations Legal systems, and as a result, between procedures of these systems become feebly proclaimed. As an example, Continental Legal System has started to rely more on earlier cases whereas a great deal of importance is mounted on statutes in modern common legislation countries. Basic themselves after that reality, a great deal of legal scholars speak out to get convergence theory which implies a creation of one legislation for those countries across the world. Will this theory ever before become a reality? Time will show. However, to my viewpoint, before it becomes possible we must reach the convergence of cultures, ideologies, moral principles and political behaviour.