Comparison between the two systems of law civil law and common law take examples of those systems from any countries

Types of lawThere are generally considered to be five legal systems in the world today: civil law, common law, customary law, religious law, and mixed legal systems.. Nations with civil

B GIO DC V  ĐO TO

TRƯỜNG ĐI HỌC KINH TẾ QUỐC DÂN VIỆN NGÂN ÀNG H – T ÀI CHÍNH

ESSAY

SUBJECT: FUNDAMENTALS OF LAW

TOPIC: COMPARISON BETWEEN THE TWO SYSTEMS OF AW L : CIVIL LAW AND COMMON LAW TAK EXAMPLES E OF THOSE SYSTEMS FROM ANY COUNTRIES

LECTURER: LLM KHANH NGUYEN TRAN

STUDENTS: NGUYEN NAM ANH

LE THI NGOC ANH

LE THI NGOC ANH

NGUYEN HOANG DIEU ANH

PHAM KIEU ANH

CLASS: BFI 64 FINANCIAL INVESTMENT –

Hà N ội, Nov ember 24 , 2022 th

Contents

ESSAY 1

I GENERAL DESCRIPTION 3

1 Definition and importance of law 3

2 Introduction of legal system 3

3 Types of law 4

II Common Law 4

1 Definition 4

2 Types of Common Law 5

3 Advantages and disadvantages 5

III Civil Law 5

1 What is the Civil Law? 5

2 Types of civil law 6

3 Advantages and Disadvantages of civil law 7

IV Comparison between Civil law & Common law 7

V Examples 10

VI Exercises 12

Reference sources:

https://www.investopedia.com/terms/c/common-law.asp

https://learn.financestrategists.com/finance-terms/common-law/?gclid=Cj0KCQiA99ybBhD9ARIsALvZavVhE5cYvW3ABq92K7GGrmySnG L94hxAaBdIjaUr3xdFbtJ0Xa9pKwAaAhtGEALw_wcB

http://www.luatsuvlc.com/so-sanh-he-thong-phap-luat-common-law-va-civil-law - 716986662.html?fbclid=IwAR2THog9kB-E7FFOi8mgekZJphslYuQ7RS0ccmN-SEkTJoyYt6H5mxcVv2o

https://www.theatlantic.com/national/archive/2012/06/what-america-can-learn -from-germanys-justice-system/258208/

3

I GENERAL DESCRIPTION

1 Definition and importance of law

- Definition:

+ The Oxford Dictionary defines a law as “a rule established among a community and enjoining or prohibiting certain action; the system made up of these things; any rule of procedure”

+ Law consists of rules that establish modes of behavior and procedures

- Importance:

+ Defending us from evil

+ Promoting the common good

+ Resolving disputes over limited resources

+ Encouraging people to do the right thing

Ex: Traffic rules and speed restrictions are in place to ensure that we travel safely Ex: The proper training of the people who care for us and frequently hold our lives

in their hands is ensured through licensing for doctors and nurses

2 Introduction of legal system

- Law includes the legal system which establishes procedures and institutions to make, administer, adjudicate and enforce the law in the community

- In our legal system law-making is primarily the responsibility of the

Commonwealth Parliament and the state parliaments

- Courts (judges and magistrates) are responsible for interpreting the meaning of the law and resolving disputes when it is claimed that the law has been broken

(adjudicating)

Legal rules differ from non-legal rules in that legal rules apply to the community

as a whole

3 Types of law

There are generally considered to be five legal systems in the world today: civil law, common law, customary law, religious law, and mixed legal systems

- Civil law systems: have their origin in the Roman legal tradition Nations with civil law systems have comprehensive, frequently updated legal codes Most importantly, case law is a secondary source in these jurisdictions France and Germany are two examples of countries with a civil law system

- Common law systems: while they often have statutes, rely more on precedent, judicial decisions that have already been made Common law systems are

adversarial, rather than investigatory, with the judge moderating between two opposing parties The legal system in the United States is a common law system

- Customary law systems: are based on patterns of behavior (or customs) that have come to be accepted as legal requirements or rules of conduct within a particular country The laws of customary legal systems are usually unwritten and are often dispensed by elders, passed down through generations

- Religious legal systems: are systems where the law emanates from texts or traditions within a given religious tradition Many Islamic nations have legal systems based in whole or in part on the Quran

- Mixed legal systems: refer to legal systems where two or more of the above legal systems work together

II Common Law

1 Definition

Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts Courts create common law by trying different types of cases and setting a precedent for rulings in such cases

5

The common-law system prevails in England, the United States, and other countries colonized by England The common-law system is also used in Canada, except in the Province of Quebec, where the French civil law system prevails

2 Types of Common Law

There are two types of Common Law:

- General common law is where laws are created for situations and circumstances that do not have a precedent Contract law is an example

- Interstitial common laws are temporary laws created by the courts through interpretations of existing statutes An example of this type of law is the choice to exclude wheelchairs from a “no wheeled vehicles on sidewalk” ordinance

3 Advantages and disadvantages

As with any legal system, common laws have their own pros and cons

- Advantages: Through the use of precedents, common law systems represent a chain of thought regarding a particular issue The precedents and reasoning that connect these thoughts parallel the thinking and the issue’s role in society As such, common law is remarkably consistent and logical in its handling of cases

- Disadvantages: Common law systems can become outdated because they heavily rely on past rulings Society is constantly in a state of flux and past rulings, which may have seemed right then, may no longer apply in new cases

III C ivil Law

1 What is the Civil Law?

- Civil Law or Continental is one of the systems with the longest history of

development compared to different legal systems in the world

- Today, the scope of influence of the Civil Law system is relatively wide, including continental European countries (France, Germany, Italy ), Quebec (Canada), Louisiana (USA), Japan and some European countries Latin America (Brazil, Venezuela )

~ In short Civil Law is:

- A comprehensive system of rules and principles that are usually organized by rule and easily accessible to citizens and jurists

- A well-organized system favoring cooperation, order, and predictability, based on

a logical and dynamic classification developed from Roman law and reflected in the structure of codes

- An adaptive system, with civil rules that avoid excessive detail and contain general provisions that allow adaptation to change

- A system that is primarily legislative, but still leaves room for the judiciary to adapt the rules to social change and new needs, by way of interpretation and innovative jurisprudence

2 Types of civil law

- French Civil Law: in France, Spain, and former French colonies

- German Civil Law:in Germany, Austria, Switzerland, Greece, Japan, Korea, and the Republic of China (Note: Current Chinese law and Vietnamese law, according

to academic tradition, are classified under the legal system society, but in practice many civil regulations, proceedings and court systems have many features of Civil Law)

- Civil Law of Scandinavian countries: Denmark, Sweden, Finland, Norway and Ireland Portuguese and Italian law is also influenced by France and Germany, but 19th century civil codes are closer to Napoleonic law and 20th century civil codes are more similar to German civil law In terms of legal training, these countries are more similar to the German legal system Laws in these countries are often referred

to as complex phase (mixed) legal systems The law in the Netherlands or the civil law in the Netherlands is difficult to put into any group, but it must be admitted that the Dutch civil law has had a significant influence on the modern private law of many countries For example, current Russian civil law is directly influenced by Dutch law

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3 Advantages and Disadvantages of civil law

- The advantages of the civil system are that it better applies the principle of legality, in such a way that the average person is or can be fully aware of the consequences of his actions by referring to written law

This warning is given beforehand in such a way that the person can only be judged according to a known law and not an arbitrary one Laws passed in Civil law jurisdictions aren’t retroactive They only apply for the future (with few exceptions) which means that the legislature cannot arbitrarily apply laws to whoever it wants

In addition to that, while it doesn't play a major role, judges often use jurisprudence (or previous cases) to judge issues where the law remains silent or unclear, giving the judge some freedom.)

- The disadvantages of such a system are that it remains static

e interpretations He

A judge can never interfere in the domain of law by giving wid

can only apply written law with a narrow margin of appreciation This can lead to injustices, some of which might sound ridiculous, but nevertheless are the result of applied law Otherwise, this system gives too much power to legislators and not enough to judges A Civil law legislature can unilaterally (at least in parliamentary systems) pass any law, even the most arbitrary of them, which also leads to

injustices.)

IV Comparison between Civil law & Common Law

Evolution

Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues

in different ways, from different perspectives

Legal System

Legal system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system that serves

The legal system is characterized by case law, which

is law developed by judges through decisions of courts and similar tribunals

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as the primary source of law

Role of judges

Chief investigator; makes rulings, usually non-binding

to 3rd parties In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code Though the judge often brings the formal charge

Makes rulings; sets precedent; referees between lawyers Judges decide matters of law and, where a jury is absent, they also find facts Most judges rarely inquire extensively into matters before them, instead relying on arguments presented

by the part

Countries

Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), and most of Europe

United States, England, Australia, Canada, and India

Precedent

Only used to determine administrative of constitutional court matters

Used to rule on future or present

cases

Role of jury

In cases of civil law, the opinion of the jury may not have to be unanimous Laws vary by state and country

Juries are present almost exclusively in criminal cases;

virtually never involved in civil actions Judges ensure law prevails over passion

Juries are composed only of laypersons — never judges In the U.S., juries are employed in both civil and criminal cases Their function is to weigh evidence presented to them and

to find the facts and apply the

law

History

The civil law tradition developed in continental Europe at the same time and

Common law systems have evolved primarily in England and its former colonies,

was applied in the colonies of European imperial powers such as Spain and Portugal

including all but one US jurisdiction (Louisiana) and all but one Canadian jurisdiction (Quebec) For the most part, the English-speaking world operates under common law

Sources of

Law

1 Constitution

2 Legislation statutes and – subsidiary legislation

3 Custom

4 International Law

5 Nota bene: It may be argued that judicial precedents and conventions also function within Continental systems, but they are not generally recognised

1 Constitution (not in the UK)

2 Legislation Statutes and – subsidiary legislation

3 Judicial precedent – common law and equity

4 Custom

5 Convention

6 International Law

Type of

argument and

role of

lawyers

Inquisitorial Judges, not lawyers, ask questions, and demand evidence Lawyers present arguments based on with the evidence the court

finds

Adversarial Lawyers ask questions of witnesses, demand the production of evidence, and present cases based on the evidence they have gathered

Evidence

Taking

Evidence demands are within the sovereign inquisitorial function of the court — not within the lawyers’ role As such, “discovery” by foreign attorneys is dimly viewed, and can even lead to criminal sanctions where the court’s

Widely understood to be a necessary part of the litigants’ effective pursuit or defense of a claim Litigants are given wide latitude in US jurisdictions but are more limited outside the US

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role is usurped

V Examples

Justice System :

Judges genuinely make decisions in the civil court systems of other nations When necessary, they gather evidence, frame the issues, and make legal decisions Judges control the process rather than leaving it to competing lawyers, who will always look for an advantage To determine the parties' legal claims from the outset of the action, they impartially apply the law to the facts The parties must lend a hand Particularly the German system offers a crystal-clear illustration of how a civil justice system can function more effectively

Parties in Germany are required to

inform judges of their claims right away

German plaintiffs must provide evidence

to back up their assertions in their

complaints They must specify the

supporting documentation they intend to

use, and defendants must, whenever

possible, substantiate their denials with

facts

In contrast, plaintiffs in the United States provide few facts and scant evidence in their complaints They had

to at least state the facts before 1938

German judges are involved in cases

from the beginning Plaintiffs' complaints

are initially read by judges, not by

defendants Judges review complaints

after they are filed to ensure that they

comply with procedural requirements and

to decide whether the facts asserted will

Judges do not typically review complaints before service or at any other time in the United States On the defendants' request, they may review particular areas after service, but this post-service review is more time-consuming and expensive than its