(Tiểu luận) 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 GIODCVĐOTO TRƯỜNG Đ I HỌC KINH TẾ QUỐC DÂN VIỆN NGÂN HÀNG – TÀI CHÍNH

ESSAY

SUBJECT: FUNDAMENTALS OF LAW

TOPIC: COMPARISON BETWEEN THE TWO SYSTEMS OF LAW:

CIVIL LAW AND COMMON LAW TAKE EXAMPLES 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 Nội, November 24 th , 2022

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/

2

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

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

4

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 Civil 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 )

5

~ 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

6

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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

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

interpretations He 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

Legal System

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 originating in The legal system is Europe whose most prevalent characterized by case law, which

feature is that its core is law developed by judges principles are codified into a through decisions of courts and referable system that serves similar tribunals

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as the primary source of law.

Chief investigator; makes Makes rulings; sets precedent; rulings, usually non-binding referees between lawyers

to 3rd parties In a civil law Judges decide matters of law system, the judge’s role is to and, where a jury is absent, they Role of judges establish the facts of the case also find facts Most judges

and to apply the provisions of rarely inquire extensively into the applicable code Though matters before them, instead the judge often brings the relying on arguments presented formal charge by the part

Spain, China, Japan, Germany, most African

United States, England, Countries nations, all South American

Australia, Canada, and India nations (except Guyana), and

most of Europe

Only used to determine

Used to rule on future or present Precedent administrative of

constitutional court matters

cases

In cases of civil law, the

Juries are composed only of opinion of the jury may not

laypersons — never judges In have to be unanimous Laws

vary by state and country

the U.S., juries are employed in

both civil and criminal cases Role of jury Juries are present almost

exclusively in criminal cases;

Their function is to weigh

evidence presented to them and virtually never involved in

to find the facts and apply the civil actions Judges ensure law.

law prevails over passion

The civil law tradition Common law systems have History developed in continental evolved primarily in England

Europe at the same time and and its former colonies,

8

was applied in the colonies of including all but one US European imperial powers jurisdiction (Louisiana) and all such as Spain and Portugal but one Canadian jurisdiction

(Quebec) For the most part, the English-speaking world operates under common law

1 Constitution

2 Legislation – statutes and

1 Constitution (not in the UK) subsidiary legislation

2 Legislation – Statutes and

3 Custom

4 International Law

subsidiary legislation

5 Nota bene: It may be

argued that judicial

4 Custom precedents and conventions

5 Convention also function within

Continental systems, but they

6 International Law

are not generally recognised

Inquisitorial Judges, not

Adversarial Lawyers ask Type of lawyers, ask questions, and

questions of witnesses, demand argument and demand evidence Lawyers

the production of evidence, and role of present arguments based on

present cases based on the lawyers with the evidence the court

evidence they have gathered finds

Evidence demands are within

the sovereign inquisitorial Widely understood to be a function of the court — not necessary part of the litigants’ Evidence within the lawyers’ role As effective pursuit or defense of a

Taking such, “discovery” by foreign claim Litigants are given wide

attorneys is dimly viewed, latitude in US jurisdictions but and can even lead to criminal are more limited outside the US sanctions where the court’s

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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

GERMANY (CIVIL)

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

THE UNITED STATES (COMMON)

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

justify judgements if proven The

defendants are only served with

complaints after judges have considered

them; unfounded complaints typically

don't proceed this far

In Germany, parties and courts work

together to frame disputes German judges

typically order parties to enter joint

conferences when they approve

complaints for service Judges consult with

both sides at these meetings, not just their

attorneys but also the parties to the dispute

themselves The problems that they must

consider in order to judge cases are

framed during negotiations with the parties

They establish which facts are relevant

and in dispute, they define what the

plaintiffs are asking for, and they specify

which legal principles may be involved

Parties have a legal obligation to

cooperate, which requires them to provide

judges with complete responses and,

where necessary, to substantiate claims

with offers of proof

German counterpart The requirement that there be a determination which the asserted claims are legally "plausible" (embodied in two recent Supreme Court decisions, Twombly and Iqbal) was received with vociferous criticism Early pretrial conferences are not frequently held by courts in the United States, and when they are, they are typically used to set deadlines rather than to outline concerns They hardly ever demand the presence of the plaintiffs Parties are not obligated to work together (although the Federal Rules Committee is currently considering one)