Talk:Civil law (legal system)

From Wikipedia, the free encyclopedia

A summary of this article appears in Law.
Portal:Law
 Law Portal
This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field.
??? This article has not yet received a quality rating on the assessment scale.
Top This article has been assessed as Top-importance on the assessment scale.

Contents

[edit] what are the rules governing this civil law as general

[edit] civil law and economy

I removed a vague statement:

A difference that is emphasized by economists is that civil law countries emphasize social stability, while common law countries focus on the rights of an individual. According to the legal origins theory promoted by some economists, this has a considerable impact of different countries' financial development.

Which economists say this? What do they mean exactly? David.Monniaux 20:00, 5 Feb 2005 (UTC)

You can find the answer to your question in Legal origins theory. I do not agree with that view, but it is has been widely discussed both in economics and law scholarship (especially corporate law) in the past years. So I suggest you revert your edit. Martg76 12:19, 6 Feb 2005 (UTC)

I read about half of this article and still don't know anything about what it is, compared to common law. Someone needs to write a good laymen's introduction. — Omegatron 03:14, 10 October 2005 (UTC)

I concur. Most discussions of the civil law I have seen have this problem---they are phrased in terms of general, broad statements, rather than focusing on concrete differences. For example, I've often heard that civil law really doesn't have an area called "contract law," but instead calls it "the law of obligations." --Coolcaesar 04:16, 10 October 2005 (UTC)
The key to me is "The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, where civil law develops out of the Roman law of Justinian's Corpus Juris Civilis proceeding from broad legal principles and the interpretation of doctrinal writings rather than the application of facts to legal fictions."
The reason why the "civil law" as such is hard to describe is that is a collective term for all non-Anglo European legal systems. As such, the term, which includes basically everything that is not "common law", is ill-defined and somewhat Anglocentric. It is no big surprise that there are no interwiki links to equivalent German or French pages (none exist). Martg76 17:45, 25 November 2005 (UTC)

On a different note, "It is a common but incorrect belief that civil law systems do not offer the presumption of innocence, when in fact they do." Is that a serious suggestion by a serious person? If so, I would be greatly interested to know. Divad 20:37, 16 November 2005 (UTC)

EU -> European Convention on Human Rights - Article 6
Actually the Convention is not related to the EU at all. However ratification of the treaty is a requirement for membership in the Council of Europe and the EU. Except for the Vatican every country in Europe is a member of the CoE - and respects judgments made by the European Court of Human Rights. This ensures that regardless of domestic laws and verdicts - all European citizens have access to these rights. Also in my own country, Norway, the presumption of innocence is clearly stated in both law and theory. AndersH 22:37, 24 February 2007 (UTC)

[edit] CHINA/JAPAN?

Those who contributed to this page, where would you place Japan and China in the categories among the Civil Law Countries?

They are typically considered civil law countries, with considerable historical influence coming from Germany. Martg76 17:45, 25 November 2005 (UTC)

Common Law - Parliment is soveriegn and therefore statute or legislation is the primary source of law in common law, case law and precedent subservient to the dictat of Parliment. In EU Common Law countries, EU law is the primary source of law and can have direct effect on national law. Not quite as stated in this article!!!!!!!!!

Though Parliament is sovereign, parliament is usually not the place where a law is first formulated. Laws get formulated and elucidated in case law via the jurisprudence process. It is only when a reform in case law is needed that Acts of parliament are passed. Acts usually tend to be very precise and address specific aspects of a case. Even when they are general in wording, common law judges have the authority to expand or limit their application.
I second the above. Parliamentary laws are generally formed by judicial precedent. --Ashley Rovira 19:35, 16 December 2006 (UTC)

[edit] Civil law vs. Common law

In some common law countries, especially the United States, judges are seen as balancing the power of the other branches of government.

Are judges seen as one of the branches of government in US?

By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi; 'the mouth of the law').

Does this mean, that the roles of legislation and judges are not separated in common law legal systems?

An expression "the mouth of the law" looks like to be a citation from one of the Montesquieu's works (perhaps, from "The spirit of the laws"), describing judges as legal machines that have no their own mind. I guess it itsn't a way how to describe a process of law application in France or, to my knowledge, in any other country of the so-called civil law system category.--AraX 14:12, 14 July 2006 (UTC)

Civil law judges are usually trained and promoted separately from advocates, whereas common law judges are usually selected from accomplished and reputable advocates.

Where's the reference?

--AraX 14:12, 14 July 2006 (UTC)

For those interested, there is an article on Separation of powers. --Aquarius Rising 16:23, 14 July 2006 (UTC)

[edit] Basic Tenets

I know there are five basic codes to civil law, but what are they? Civil code/porcedures, Criminal code/procedures, and commerical??


Those are, in no specific order as such doesn't exist :

1. Criminal Code (Codex or Criminal Law in some countries, with Law meaning usually quite big compendium of both definitions of criminal act in general and specific criminal acts, as well as punishment for those) and SEPARATE Criminal Procedures Code
2. Civil Code (containing materiae concerning property, land owning, loans, mortgage, contracts ((usually named and specified in form and requests for validity)) etc. In some countries procedures before courts in civil disputes are contained in this code in some there is separate code). Intellectual property law is usually included in this Code.
3. Administration Code (concerning obligatory behavior and possible disputes with government officials, as well as procedures for disputes among officials from different branches of government)
4. Family Code (usually number of separate laws, for example Family Law and Inheritance Law, which are separated in most countries and include procedures for divorce, property settlements, property division between partners in former marriage etc.)
5. Commercial Law (loose collection of numerous codes concerning relationships between companies, people and government in spheres of market, production, import/export, labor law (although some countries, including my, Bosnia and Herzegovina tend to stress social meaning of laws governing right of employees and unions) etc. Examples include Company Code, Labor Code, numerous Laws and lesser-than-laws legal documents originating from government regulating taxes, etc.

This is by no means an comprehensive list, nor it is as such used in legal systems of countries under civil law system, but rather an explanation, albeit short, of main branches of law in those countries intended for someone outside them. Keep in mind that Code and Law (in Upper Case) are used equivalently thorough these codifications, as is case in most European countries. --Azerel 10:58, 12 December 2006 (UTC)

[edit] Ossification

Please remove the word ossification. Good writing doesn't send readers to the dictionary.

This is used in the section on opponents to coding laws.

Ossification? Funny, that's familiar to anyone who's taken a Health Guidance course in high school (where one learns that "os" means bone). You might want to try the Simple English Wikipedia for users with smaller vocabularies. Wikipedia is targeted towards reasonably intelligent people (that is, at least reasonably intelligent teenagers), not the lowest common denominator! --Coolcaesar 05:33, 1 November 2006 (UTC)


It is a matter of fact that ossification is not a commonly used word. Though a high school Health Guidance course may use the term, many intelligent readers do not. Additionally, the purpose of wikipedia is to lend FREE information to those that would otherwise have no access. For example, well educated prep-school Health Class students would have access to a library, and an array of encyclopedias, thus eliminating a great need for this service. Often, on the other hand, inner-city teens and young adults rely on a service like wikipedia to engage their minds, and to increase general knowledge. Far too often they are ill-equipped in terms of vocabulary. As such, it is beneficial to use more common terms. Finally, many wikipedia members offer suggestions for improved readability. This is not to insult the writer, but to improve the experience for the reader. It would benefit a greater number of people if a contributor refrains from defensive thinking and responses, and instead objectively addresses issues raised by other members.

[edit] Presumption of innocence

I removed the statement "It is a common but incorrect belief that civil law systems do not offer the presumption of innocence." That is debatable, when the role of the judge is inquisitive in nature as opposed to a referee and finder of fact. If this is really the case, this statement needs to be expanded on how there is a presumption of innocence in civil law, otherwise it's just an opinion. 69.58.248.102 08:50, 7 December 2006 (UTC)


REPLY: Well, I think the statement "judge is inquisitive" in most civil law countries needs to be revisited and supported with citations. In the article I dispute that "Most civil law countries investigate major crimes using a so-called inquisitorial system." I have to say this seems most like typical guesswork, without any real foundation. In most civil law countries I know of the judge does not have a inquisitorial role in criminal cases (or otherwise). 15 Dec 2006

Are you a lawyer? Any lawyer is aware that civil law judges take a far more active role in cases, particularly criminal ones, than their common law counterparts. Civil law judges can engage in a lot of direct investigation and inquiry into the underlying evidence. In contrast, a common law judge who attempts to do his own investigation outside of the courtroom (for example by visiting a murder scene by himself without warning the parties in advance) could be forced to recuse himself, and if he does not, he will be suspended or reprimanded for such an egregious breach of his duties. In rare cases judges who continue to engage in such behavior can be fired and ejected from the bench. A common law judge can look only at the evidence that the parties bring into his courtroom! But you are right that the article needs citations; I will look around for some. --Coolcaesar 21:25, 18 December 2006 (UTC)
I'm not a lawyer. There may well be a presumption of innocence in civil law, however given that I'm in a common law nation, I, as a Wikipedia reader, don't understand how. I don't understand how a judge can direct an investigation and be unbiased towards a defendant. After all (lawyers are human too....Ahhhh, the blasphemy!!!) Either way, the way the statement was phrased doesn't explain how and appears to be mere opinion. 69.58.248.102 09:12, 11 January 2007 (UTC)
I reinserted the presumption of innocence paragraph into the article this time with some references. Also I would like to refer to the article on presumption of innocence where you can find:

"This idea results from the fact that in most civil law nations, an investigating magistrate supervises police investigations. To common law countries with adversarial systems, the civil law criminal justice system appears to be hopelessly biased, since the judge should remain as impartial as possible. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations"

Being a law student in a Civil law country I find it hard to understand that people question the impartiality of our judges. However Civil law is a very broad term for many different systems. Having both read, observed, given evidence and defended a client in court it is my clear opinion that judges, at least in my jurisdiction, are very impartial and the presumption is given due notice. However in my country the role of the judge is not to investigate or supervise the police - it is simply to hear evidence, pose questions to the advocates and witnesses if they like and if the criteria are met a verdict is given. AndersH 10:10, 28 February 2007 (UTC)
"how a judge can direct an investigation and be unbiased". Hailing from germany, I'm totally unable perceive this as a problem. The judge is supposed to understand, to comprehend, to grok the case. To get to the truth of the matter, which of course includes the question of wether the defendant is guilty at all. There's a difference between prosecution and investigation. --schnobs, 83.171.162.210 23:37, 4 March 2007 (UTC)
"Any lawyer is aware that civil law judges take a far more active role in cases, particularly criminal ones, than their common law counterparts." You seem to have understood civil law / inquisitorial system incorrectly. I can say this only from Finnish point of view and I'm not a lawyer. Here, a judge doesn't "engage in lot of direct investigation". The police conducts the investigation of course. What the judge may decide, is whether there is enough proof to have the defendant put to pretrial detention etc. The judge doesn't go to police station and question witnesses. He doesn't conduct house searches. So I'd like to know what you mean by your claim that judges in civil law jurisdictions "engage in lot of direct investigation".
Then when it comes to actual trial, the prosecutor mostly questions the parties involved. However, it is true that also the judge usually questions the defendant and the injured party. The duty of the prosecutor and the judge is to find the truth in the case. If the judge thinks asking questions about the case from the parties involved somehow helps his/her task to find the truth, he/she will ask those questions. It's that simple. The judge is of course impartial, he/she doesn't accuse anyone but merely asks verifying questions. —The preceding unsigned comment was added by 80.222.50.237 (talk) 12:06, 5 March 2007 (UTC).
About the presumption of innocence... I think the only difference (if there is a difference) is that in civil law systems it maybe isn't "presumption of innocence" but "presumption of being not guilty". There's however not actual difference. I don't really see what would be the alternative to presumption of innocence so I don't really understand how common law jurists can claim that civil law systems do not have it. —The preceding unsigned comment was added by 80.222.50.237 (talk) 12:14, 5 March 2007 (UTC).
Actually Hagerman, if you read the text I added about the presumption you will find it is unmistakably clear in the Convention (Article 6) that the words are "presumption of innocence". —The preceding unsigned comment was added by Andershalden (talk • contribs) 04:09, 9 March 2007 (UTC).

I would like to point out to all the above that "presumption of innocence" doesn't mean "being impartial." It means that there is a legal presumption of innocence in favor of the accused. And a legal presumption is a means of allocating the burden of proof. It is NOT a fiction of the type "innocent until proven guilty." It simply means that the burden of proof is on the prosecution. Whether the judge is active or not in collecting evidence has little bearing on whether or not there is a presumption of innocence. LeoDV 22:38, 18 March 2007 (UTC)

[edit] The influence of articles tends to be much greater in civil law countries

I have removed the claim that: "Also, the influence of articles by legal academics on case law tends to be much greater in civil law countries". I see there is no source that can even remotely verify this. And from my own experience this is not the case. Legal literature and articles have very limited weight in any civil law court as far as I know. In Scandinavia it is ranked far below all other sources of law that a judge may consider relevant. It can only be used to argue pro or contra your own interpretation of the relevant law/paragraph - but it cannot decide the outcome of a case. —The preceding unsigned comment was added by Andershalden (talk • contribs) 04:20, 9 March 2007 (UTC).

Retrieved from "http://en.wikipedia.org../../../c/i/v/Talk%7ECivil_law_%28legal_system%29_13eb.html"