Civil law system: clear and systematic rules. The logical relationship between rules constitutes a conceptual system and an institutional system, which is easy to use, but its disadvantage is rigidity. When new problems and situations arise in the development of social life, it is difficult to deal with them without legal provisions. The law is rigid and inflexible. The initial decision of civil law countries to join the legal system is voluntary, that is, it is the result of their own choice and active reference to French law and German law;
2. Characteristics of Anglo-American legal system
Anglo-American legal system: there is no written code, no strict concept system, which is difficult to master and requires high application of law. Its advantage is flexibility. Legal rules are not made by legislatures or parliaments. It was created by the judge. When new problems and new cases appear in social life, judges can create some rules to adapt to social changes. Countries with common law system, except Britain, did not voluntarily join the legal system at first, but were the result of occupation, conquest and colonization.
3. The difference between common law system and civil law system.
(1) Different legal sources. Continental law system is a statutory law system, and its laws exist in the form of statutory law. Its legal sources include various normative legal documents formulated by the legislature, various administrative regulations promulgated by the administrative organs and international treaties to which this vehicle is a party, but it does not include judicial precedents. The legal sources of Anglo-American legal system include both statute law and precedent, and the case law constituted by precedent occupies a very important position in the whole legal system.
(2) The legal structure is different. The continental law system inherits the tradition of ancient Roman law and is used to making unified and systematic provisions on the norms extended by a certain legal department in the form of code, which constitutes the backbone of the legal system structure. The Anglo-American legal system seldom formulates codes, and is used to making special provisions on a certain kind of problems in the form of a single law. Therefore, its legal system is mainly developed from single-line law and case law in structure.
(3) Judges have different powers. The civil law system emphasizes that judges can only use the provisions of the statute law to try cases, and the judge's interpretation of the statute law is also strictly limited by the statute law itself, so judges can only apply the law but not create the law. Judges in the Anglo-American legal system can refer to both written laws and existing cases, and they can also create new cases by using the skills of legal interpretation and legal reasoning under certain conditions, so that judges can not only apply the law, but also create laws within a certain range.
(4) The proceedings are different. The procedure of civil law system is centered on the judge, which highlights the function of the judge and has the characteristics of interrogation procedure. In addition, most judges and jurors form a court to hear cases. The litigation procedure in the common law system focuses on the plaintiff, the defendant, their defenders and agents, and the judge is only the "arbitrator" of the dispute between the two parties and cannot participate in the dispute. At the same time, there is a jury system in this adversarial (also called defense) procedure. The jury is mainly responsible for making factual conclusions and basic legal conclusions (such as guilt or innocence), and the judge is responsible for making specific legal conclusions, that is, judgments.
(5) Different legal classifications. The Anglo-American legal system is less influenced by Roman law, and does not divide all legal departments into public law or private law according to whether the legal norms protect public interests or private interests. Many countries in the Anglo-American legal system do not have a unified civil law department, but divide the relevant laws into property law, contract law and tort law according to historical traditions. Due to the historical tradition of Roman law and the theoretical basis of enlightenment thought, the civil law system can be divided into public law and private law. With the emergence of monopoly capitalism and the strengthening of state power, some public and private law departments have emerged between public law and private law, that is, social economic law.
(6) Different ways of legal thinking. Because the common law system takes case law as the main legal source, judges and lawyers must abstract, sigh, summarize and compare the legal principles existing in a large number of cases in order to apply the most appropriate legal principles to specific cases. Because judicial power is greatly limited, laws can only be formulated by representative legislature, and judges can only judge cases with established laws. Therefore, in civil law countries, the role of judges is to find the applicable legal provisions from the existing legal provisions, and link them with the facts to infer the inevitable results.
Attached paper: Comparison between continental law system and common law system.
Qiu, Law School of Renmin University of China
Continental law system and Anglo-American law system are two major legal systems in the world today, covering some major countries in the world. The representatives of civil law system are German, French and China. Anglo-American legal system is of course represented by Britain and America. The comparison of differences between civil law system and common law system has always been a hot topic for comparative jurists. There are great differences between the two legal systems in many aspects, and I only compare them from the aspects of litigation procedures.
For a long time, comparative jurists tend to assume that similar needs are always met in a similar way in all developed legal systems in the world. [1] However, the huge differences in litigation procedures between civil law system and common law system break this assumption. Such as the preparation and conduct of summary civil litigation, the way to state the facts to the court, the way to choose or ask witnesses or experts, etc. , all make this assumption untenable. There are so many differences between the two legal systems, which are influenced by many reasons, such as regional differences, national habits, cultural characteristics, historical traditions and so on. But I think the main reason is the influence of ideology and cultural tradition. The thinking habits of the two legal systems are different in many aspects, which has created great differences between the two legal systems.
As a matter of fact, many characteristics of the proceedings in the Anglo-American legal system are caused by a decisive fact, that is, the proceedings originated from the jury system. Nowadays, it is generally believed that the jury system is only used in criminal cases in Britain, and only when the defendant claims that he is "innocent" in a serious crime. [2] Nevertheless, the tradition of jury system still permeates the civil litigation in Britain. The influence of the jury system has led to many specific proceedings in civil and criminal trials. [3] This also makes its litigation procedure different from that of civil law countries.
In the civil law system, litigation can be divided into multiple trials at intervals. Therefore, for the unexpected opinions or evidence put forward by one party in court, the other party can have enough time to present further evidence to refute it in the next trial. However, in the common law system, it is quite different. Because it is a one-time trial, in order to prevent the same thing from happening, lawyers should not only think clearly about their own arguments and evidence, but also understand the arguments and evidence of the other side. Because in the trials of common law countries, if unexpected evidence appears, neither party can easily ask for an adjournment. This makes it necessary for the lawyer to meet his witnesses before the trial to know what they will say and do in court. For this kind of behavior, German lawyers think it is against professional ethics. [4] It is not difficult to imagine why lawsuits in common law countries often have unexpected results, and why lawyers who can make love in court are always respected. However, the trial in civil law countries always gives people a step-by-step feeling, which is not exciting enough, so it is difficult for lawyers to have a very exciting performance.
Since common law countries adopt the mode of one-time trial, what is the role of judges? Before the trial began, the lawyers made careful preparations, but the judge was extremely unclear about the controversial issues and related evidence. It is believed that judges rely on lawyers to provide all the necessary facts and laws through oral statements. [5] As we all know, in the courts of common law countries, lawyers independently decide which witnesses to call and ask. Every witness was questioned by one party and then by the other. Questioning witnesses is also the embodiment of lawyers' wisdom. Good lawyers can often make the testimony of opposing witnesses unreliable and unacceptable to judges or juries, thus losing the effectiveness of evidence.
Lawyers question witnesses, and judges generally only pay attention to the testimony of witnesses. When a judge speaks, it is usually only a judgmental statement such as "valid objection" or "invalid objection" to decide whether the questions of the parties can be adopted. Judges in common law countries can ask witnesses, but in order to avoid being involved in conflicts and remain neutral, they often ask fewer questions. There was a case that explained the wisdom of the judge from the opposite side, that is, "Jones v. National Coal Commission": the judge asked too many questions in the first instance of the case, which caused both parties to fail to present evidence in the best way they thought, and the Court of Appeal only sent the case back to the lower court for retrial on this basis. [6] This case also illustrates the principle of "procedure is superior to rights" in the common law system.
Judges in Britain and America are passive everywhere in the trial. They knew nothing about the case at the beginning and had to know it during the trial, so the parties and their lawyers must play a major role. This is mainly because, in common law countries, it is generally believed that the best way to obtain the real situation in the court trial process is to let the parties debate the real situation, and the judge only acts as the supervisor of the court rules, that is, "confrontational" litigation. But in civil law countries, the situation is just the opposite. They believe that if judges can play a greater role, it may be more conducive to discovering the real situation. Therefore, the judge has the obligation to ask questions, inform, encourage and persuade the parties, lawyers and witnesses, so as to obtain all the true information from them and avoid the parties losing the case. Civil trials in civil law countries still have some "inquisitive" nature and some bureaucratic characteristics. [7] The court is the main body of litigation and evidence investigation, and the judge presides over the court trial as an active judge. In the United States, the litigation procedure of "adversary system" is very strict. This is mainly because, as long as it is a common law request rather than an equitable request, there is still a jury in the trial stage of civil litigation.
conclusion
Continental law system mainly inherits Roman law, while Anglo-American law system does not. The difference between them is enormous. For example, continental law is mainly written law, while Anglo-American law is case law. The comparison of the litigation procedures selected in this paper is only the difference in the specific judicial system between the civil law system and the common law system. It is very meaningful to study the differences between different legal systems, which can make us learn from each other's strong points and absorb the good ones from other legal systems to improve our legal system, which will have a far-reaching impact.
At present, China's socialist legal system construction is in an intensive stage. It is also of practical significance to enrich and improve China's legal system based on the written law of civil law system and drawing lessons from the case law system of common law countries. In the process of socialist market economy, we will inevitably encounter all kinds of new situations and problems, which requires us to look at the world and boldly absorb and learn from the essence of foreign legal systems.