Civil procedure
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Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a "civil action", as opposed to a criminal action). Civil Procedure is one of the American Bar Association mandatory first year law school courses. [1] These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function.
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[edit] Civil court in Canada
In Canada the rules of civil procedure are administered by each jurisdiction (federal and each province) and thus each has its own set of rules. Most provinces base their civil procedure rules on the mixture of English and American rules adapted to the needs of the province. The Ontario Rules of Civil Procedure have been largely adopted by Manitoba, PEI, and North West Territories.
In Ontario the stated general principle of the Rules of Civil Procedure is
to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Civil procedure is generally developed by a civil procedure committee consisting of judges of the local jurisdiction. This committee makes recommendations concerning procedural changes which must be ratified by the attorney general of that jurisdiction in order to move into affect.
The courts may also exercise inherent jurisdiction to control their own processes, but inherent jurisdiction cannot be exercised so as to conflict with a statute or rule. As a result, if a process has been contemplated by the civil procedure a court does not have the authority to alter or dispense compliance with that process.
The noted exception to the required compliance with the civil procedure is that the rules themselves often contain a rule which permits a court to
only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
The onus is on the party seeking to dispense with compliance with a rule to demonstrate that it is in the interest of justice.[2]
Alternative dispute resolution proceedings and administrative law proceedings both tend to have relatively simple rules of procedure, in comparison to the highly formalized procedures seen in the federal and state courts.
[edit] Civil court in England and Wales
The civil courts of England and Wales adopted an overwhelmingly unified body of rules as a result of the Woolf Reforms on 26 April 1999. These are collectively known as the Civil Procedure Rules 1998 and in all but some very confined areas replaced the older Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules.
[edit] Civil court in the United States
The United States federal court system adopted standardized Federal Rules of Civil Procedure on September 16, 1938, before which time there were varying rules that governed different types of civil cases such as cases at law or in equity or in admiralty. (These differences grew from the history of "law" and "equity" as separate court systems in English law.) There are exceptions to the types of cases that the Federal Rules now control but they are few in number and somewhat esoteric (e.g., "prize proceedings in admiralty"). Most states have also adopted the Federal Rules (with various minor modifications) to govern procedures in their state court systems.
California is the odd exception in that its homegrown civil procedure system is enshrined in statutory law (the Code of Civil Procedure), not in rules promulgated by the state supreme court or the state bar association.
[edit] Difference in civil and criminal procedures
Most countries make a rather clear distinction between civil and criminal procedures. For example, an English criminal court may force a defendant to pay a fine as punishment for his crime, and he may sometimes have to pay the legal costs of the prosecution. But the victim of the crime pursues his claim for compensation in a civil, not a criminal, action.[3] In France, however, a victim of a crime may be awarded damages by a criminal court judge.
The standards of proof are higher in a criminal action than in a civil one since the loser risks not only financial penalties but also being sent to prison (or, in some countries, executed). In English law the prosecution must prove the guilt of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is required to prove his case “on the balance of probabilities”.[3] Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable.
Criminal and civil procedure are different. Although some systems, including the English, allow a private citizen to bring a criminal prosecution against another citizen, criminal actions are nearly always started by the state. Civil actions, on the other hand, are usually started by individuals.
In Anglo-American law, the party bringing a criminal action (that is, in most cases, the state) is called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of action the other party is known as the defendant. A criminal case against a person called Ms. Sanchez would be described as “The People vs. (=versus, or against) Sanchez” in the United States and “R. (Regina, that is, the Queen) vs. Sanchez” in England. But a civil action between Ms. Sanchez and a Mr. Smith would be “Sanchez vs. Smith” if it was started by Sanchez, and “Smith vs. Sanchez” if it was started by Mr. Smith.
Evidence from a criminal trial is not necessarily admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action.[3] In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial.
Once the plaintiff has shown that the defendant is liable, the main argument in a civil court is about the amount of money, or damages, which the defendant should pay to the plaintiff. [3]
[edit] References
- ^ Legal Standarts - PDF, page 302
- ^ Supreme Court of Canada, Gustovson Drilling, 1976
- ^ a b c d Richard Powell (1993). Law today. Harlow: Longman, 34. ISBN 0582056357, 9780582056350. OCLC 30075861.
[edit] See also
[edit] External links
- Civil Procedure Rules applying to England and Wales
- Complete text of Federal Rules of Civil Procedure (Cornell Univ.)
