Group assignment subject legal english 02

While there are many legal issues which are dealt with the same way by the Civil Law and Common Law systems the two predominant legal traditions in the world, there remain also significa

MINISTRY OF JUSTICE HANOI LAW UNIVERSITY

GROUP ASSIGNMENT

SUBJECT:

LEGAL ENGLISH 02

Hanoi, 2021

BIÊN BẢN XÁC ĐỊNH MỨC ĐỘ THAM GIA VÀ KẾT QUẢ THAM GIA LÀM BÀI

TẬP NHÓM

Ngày: 12 / 11 /2021 Địa điểm: Trường Đại học Luật Hà Nội

Nhóm số: 02 Lớp: N03 Khoa: Ngôn Ngữ Anh Khoá: 44

Tổng số sinh viên của nhóm: 04

 Có mặt: 04

 Vắng mặt… Có lý do:… Không có lý do…

 Nội dung: Comparative law

Tên bài tập: Bài tập nhóm

Môn học: Văn hóa Anh-Mỹ

Xác định mức độ tham gia và kết quả tham gia của từng sinh viên trong việc thực hiện bài tập nhóm với kết quả như sau:

ST

T

MÃ

SV

CỦA SV

SV KÝ TÊN

ĐÁH GIÁ CỦA GV

M (số)

ĐIỂM (Chữ)

GV (Ký tên)

1 44301

2

Đỗ Thùy Dương 

2 44301

5

Nguyễn Thị Hải Yến 

3 44302

6

Nguyễn Nhật Quang 

4 44302

8

Bùi Hương Giang 

Hà Nội, ngày 12 tháng 11 năm 2021

Kết quả điểm bài viết: NHÓM TRƯỞNG

Kết quả điểm thuyết trình:……….

Điểm kết luận cuối cùng:……… Nguyễn Nhật Quang

TABLE OF CONTENT

OPENING 1

BODY 1

I AN OVERVIEW OF COMPARATIVE LAW 1

1 Notion of Civil Law 2

2 Notion of Common Law 2

3 Examples of countries practising Common Law and Civil Law 3

II Differences between Common Law and Civil Law 4

1 Sources of law 4

2 Legislation 5

3 Legal education and research 6

4 Procedural differences – adversarial vs inquisitorial/proceedings’ purposes 7 III COMMENTS 10

1 Civil Law 10

2 Common Law 10

CONCLUSION 11

REFERENCE 12

Comparative law is “the systematic study of particular legal traditions and legal rules on a comparative basis” While there are many legal issues which are dealt with the same way by the Civil Law and Common Law systems (the two predominant legal traditions in the world), there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts and terminology In order to discuss the key differences between the two legal systems, comparative techniques shall be utilised in this assignment This paper will focus on the key differences between the two legal systems such as historical background, the role of judges and lawyers, precedent and evidence taking

BODY

I AN OVERVIEW OF COMPARATIVE LAW

 The definition of comparative law

Comparative law is the study of differences and similarities between the law

of different countries.1 It involves the study of the different legal “systems” (or

“families”) in existence in the world It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken In addition, the importance of comparative law has increased enormously in the present age of internationalism, economic globalisation and democratization

1 A Harding & E Oeruecue, Comparative Law in the 21st Century (Kulwer Academic Publishers, London, Hague, NY, 2002) pp 1-54

Based on the comparative research, method, Civil Law and Common Law shall be specified

1 Notion of Civil Law

Civil law may be defined as that legal tradition that has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian, and as subsequently developed in Continental Europe and around the world.2 Civil law eventually divided into two streams: the codified Roman law (as seen in the French Civil Code of 1804 and its progeny and imitators Continental Europe, Quebec and Louisiana being examples); and uncodified Roman law (as seen in Scotland and South Africa) Civil law is highly systematized and structured and relies on declarations of broad, general principles, often ignoring the details One of the basic characteristics of civil law is that the court’s main task is to apply and interpret the law contained in a code, or a statute to case facts The assumption is that the code regulates all cases that could occur in practice, and when certain cases are not regulated by the code, the courts should apply some of the general principles used to fill the gaps

2 Notion of Common Law

Common law is the legal tradition that evolved in England from the eleventh century onwards Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which courts have adjudicated The common law is usually much more detailed in its prescriptions than civil law Common law is the foundation of private law, not only for England, Wales and Ireland but also in forty-nine U.S states, nine

2 R David & J.E.C Bierley, Major Legal Systems in the World Today (Stevens & Sons, London, 3rd ed., 1985) Introduction.

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Canadian provinces and in most countries that first received that law as colonies of the British Empire and which, in many cases, have preserved it as independent States of the British Commonwealth." In addition to England and its former colonies, some legal systems were converted to the common law tradition: Guyana, the Panama Canal Zone, Florida, California, New Mexico, Arizona, Texas and other former Spanish possessions

3 Examples of countries practising Common Law and Civil Law

 Common Law (Malaysia)

 Year of practice: over 200 years (since the first Recorder of the Court of Judicature of Prince of Wales’ Island was appointed by the British)

 Notable features:

- Practices a dual legal system (Syariah Law) but Common law is more

widely applied in cases as Syariah law only applies to the Muslim population

- Lawyers in Malaysia do the double task of being both barristers and

solicitors

 Civil Law (Germany)

 Year of practice: 100+ years (The civil code of Germany, the Bürgerliches Gesetzbuch was in development since 1881, it became effective on January

1, 1900, and was considered a massive and groundbreaking project)

 Notable features:

- In Nazi Germany, there were plans to replace the BGB (Germany Civil Code) with a new codification that was planned to be entitled

"Volksgesetzbuch" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality

II Differences between Common Law and Civil Law

1 Sources of law

Civil law systems draw a sharp distinction between primary and secondary sources Primary sources are enacted law, custom, and “general principles of law”

Of these, the main source is the enacted (statutory) law; it predominates in civil law systems A code in a civil law system consists of general principles, arranged

in order of importance The main or basic codes are supplemented in increasing numbers by special statutes or codes of limited coverage with which the legal system reacts to new societal problems, for instance, in areas such as consumer protection, telecommunication, and new media Custom is also a primary source of law but tends to be less important in practice because it is often difficult to prove its pervasive observance in society Customs are non-written rules, developed and observed over years and are now part of social and economic thinking ‘General principles of the law’ are what the term expresses: basic principles of the legal system which are pervasive of it and derive from norms of positive law Civil law judges resort to ‘general principles of the law’ as guidelines in the interpretation of statutory norms both for the purpose of defining their interrelation and for the purpose of their application Secondary sources consist of case law and the legal literature The legal literature consists of monographs and contributions to the legal periodical literature as well as commentaries

In the common law system, primary sources of law are constitutions, statutes, regulations, and cases Lawmaking powers are divided among three branches of government: executive; legislative; and judicial These three branches

of government, whether federal or state, create primary sources of law Firstly, the executive branch creates administrative law, which is published as regulations or

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executive orders and directives Secondly, the legislative branch creates laws ("statutes") that are passed and published as statutes Thirdly, the judicial branch creates law in the form of decisions, also called "opinions" and "cases," that are published in case reporters An important element of common law is stare decisis, which means that courts are bound to follow earlier decisions ("precedents") Secondary sources like treatises, practice guides, legal encyclopedias, and law journal articles are plain-language writings about the primary sources of law, and they are a great place to start research on any legal topic For example, in the UK, common law is considered European Union law as a source of law

2 Legislation

Generally, in civil law jurisdictions, the main source or basis of the law is parliamentary legislation, and large areas are codified in a systematic manner These codes constitute a very distinctive feature of a Romanist legal system or the so-called civil law Although in the form of statutes duly enacted by the proper legislative procedure, these codes are quite different from ordinary statutes

A civil code is a book that contains the laws that regulate the relationships between individuals Generally, it contains the following topics: persons and the family, things and ownership, successions and donations, matrimonial property regimes, obligations and contracts, civil responsibility, sale, lease, and special contracts, as well as liberative prescription (statute of limitations) and acquisitive prescription (adverse possession) A code is not a list of special rules for particular situations; it is a body of general principles carefully arranged and closely integrated A code achieves the highest level of generalization based upon a scientific structure of classification In the system of civil law, legislation occupies the most highly respected place as a source of law And Civil law courts generally

look for a legislative text and its underlying principles which they can use in one way or another as a basis for their new decision

There is also legislation in the common-law countries The first striking feature about this legislation is that statutes are usually not formulated in terms of general principles but consist rather of particular rules intended to control certain fact situations specified with considerable detail Recently there have been some notable exceptions, and it might be asked whether this is the beginning of a movement toward codification To limit these restrictive judicial tactics, the drafting of bills for legislative consideration became an art in the expression of succinct detail in order to assure maximum fulfilment of the legislative intent in

specific situations

3 Legal education and research

 Legal education

Legal education for the civil law is centered on legislation, codification and doctrine, on a very high level of abstraction The great respect for legislation is basic to the judge's approach even when he uses a statute as his starting point for a liberal interpretation of it In contrast, legal education for the common law is founded on the primacy of the decided cases; it emphasizes the important role of the king's courts in the development and unification of law, and it inclines toward a strict interpretation of statutes in order to minimize the legislative encroachment on the judicial prerogative

For example, in England, the training of young jurists was long considered

to be a function and responsibility of the practicing bar; the Inns of Court still provide an indispensable stage in the preparation of barristers The university role

in legal education is relatively recent In the United States, legal education has

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been established as a program of university instruction, and there has also been a growing recognition of the doctrinal writings of outstanding law professors

 Legal research

In the common law, research is focused essentially on prior judicial decisions, as a result of the very nature of the system Of course, legislation is controlling where applicable, and it has to be examined to determine questions of applicability, but here again the judicial interpretations become the binding authority whereas in the civil law tradition, each case is related back essentially to the legislative authority

4 Procedural differences – adversarial vs inquisitorial/proceedings’ purposes

 Role of judges and lawyers 3

Court proceedings in common law may be described as strictly adversarial

In this system, the attorneys are responsible for presenting the facts of the case, the positions of each party and the legal views including all relevant precedents In an ideal common law procedure, the judge has the function only to manage the proceeding, to review all facts of the case and legal views presented to him and finally to decide the case on that basis, or when the case is tried by a judge and jury, to sum up, the evidence and the legal principles for the assistance of the jury

In common law, the distinction between a lawyer who engages primarily in court appearances and giving opinions and transaction lawyers is normal in both large and small commercial centres

Indeed the civil proceedings in civil law are depending on the parties’(respectively their attorneys’) preferences but judges have a much more

3 See: What is the Difference Between Common Law and Civil Law? ( https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/ ) (accessed November 12 th 2021)

active part to play than judges in common law That is why civil law proceedings described as inquisitorial in contrast with common law proceedings Therefore, civil law judges have many functions which in common law the attorneys are responsible for For instance, in civil law, the judge is generally responsible for the oral questioning of the witnesses in taking evidence Thereby the judge asks the witnesses about the factual issues of the case, which are alleged and presented by the attorneys in their pleadings and which were offered for the evidence The attorneys then normally have only the opportunity to raise additional questions

In common law, the parties and their attorneys are obliged to bring in all relevant evidence This includes taking evidence by questioning the party's own witnesses and also questioning the witnesses brought forward by the opponent Civil law judges are trained according to a separate process, they are usually not lawyers before But in Common Law it is different, judges are mostly selected from very famous lawyers

 The purpose of the proceeding 4

Procedural rules in common law put the parties in a position where they are able to find out the facts of the cases that they can present these facts to the judge, respectively in some cases to a jury, and make it possible for the judge or the jury

to make the right decision Basically, the conduct of oral hearings is a fundamental principle that has always prevailed Parties can be heard as witnesses and call third parties and private experts whose statements are cross-examined by the opposing party The judge’s role is confined to that of a moderator

4 Joseph Dainow (1966 - 1967), The Civil Law and the Common Law: Some Points of Comparison, Oxford University Press, The American Journal of Comparative Law Vol 15, No 3, Oxford University Press.

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