Civil law system
(1) The formation of civil law system
1. What is civil law system? The civil law system is also called the Roman law system, statutory law system, civil law system or Roman-Germanic law system (because its historical origins are Roman law and Germanic law, in addition to canon law, commercial law and urban law). It is a legal system with a long history, wide distribution and far-reaching influence in capitalist countries. Represented by France and Germany on the European continent, based on Roman law and other legal elements, it gradually developed into a worldwide legal system. Within the civil law system, different countries and regions have different legal systems. There are generally two branches - the Latin branch represented by the French Civil Code and the Germanic branch represented by the German Civil Code.
2. The formation of the civil law system is based on Roman law.
(1) During the heyday of Rome, Roman rulers expanded their territory through force and forcibly applied Roman law. The residents of the conquered areas voluntarily adopted Roman law due to the development and perfection of Roman law, making Roman law It became “the first worldwide law for a society of commodity producers.”
(2) After the Germans invaded Rome, Germanic law adopted the principle of individualism, allowing Roman law to be preserved. The codes compiled by the Germanic states were influenced by Roman law. In the 9th century, with the development of the feudal system, the personal doctrine of law no longer applied, and Roman law and Germanic law merged.
(3) After the 12th century, the Roman Law Revival Movement emerged. The study of Roman law was combined with the actual needs of society, and it became the authoritative supplementary law in the countries of the Western European continent. The transformed and developed Roman law became the common law of Europe with the same characteristics and legal traditions, thus laying the foundation for the civil law system.
(4) After the victory of the bourgeois revolution, many Western European countries established and consolidated the capitalist system. The legal systems of these countries have further evolved with the development of capitalist economy, politics, culture and exchanges between countries. develop. First, in France, driven by the bourgeois revolution, guided by classical natural law and rationalism, and under the direct influence of Roman law, the model for formulating a complete system of statutory law was created. The French Code became a model for European countries to establish their own legal systems, marking the establishment of the civil law model in the modern sense. Subsequently, Germany formulated a series of codes based on inheriting Roman law and studying and absorbing French legislative experience. The "German Code" became a typical representative of the era of capitalism's development from a free economy to a monopoly economy.
(5) Because the civil law represented by France and Germany adapted to the needs of the entire capitalist society, and because it was easy to spread in the form of strict statutory law, after the 19th and 20th centuries, the civil law system Spread across Europe and around the world.
(2) Characteristics of the civil law system
1. In the historical origin of law, the civil law system developed under the direct influence of Roman law. The civil law system not only inherited the statutory legal tradition of Roman law, but also absorbed the systems, concepts and terminology of Roman law. For example, the French Civil Code is based on a legal ladder, and the German Civil Code is based on a collection of theories.
2. In terms of legal form, countries with civil law systems generally do not have case law, and important departmental laws are codified, supplemented by separate regulations, forming a relatively complete legal system. The natural law thought and rationalism advocated by bourgeois Enlightenment thinkers are one of the reasons for the codification of civil law countries. The "Declaration of the Rights of Man" in the French Constitution of 1791 clearly declared that the natural rights of each person can only be determined by statutory law. The thoroughness of the bourgeois revolution in continental European countries represented by the French Revolution was manifested in law by launching a large-scale codification movement. The strict distinction between legislation and judiciary requires that the code must be complete, clear and logical. Once the code is promulgated, judges must faithfully implement it, and old laws on similar issues will lose their validity. The written legal system includes: constitution, administrative law, civil law, commercial law, criminal law, civil procedure law and criminal procedure law.
3. Regarding the role of judges, civil law requires judges to handle cases in accordance with the law and has no legislative power.
Civil law countries have a clear division of labor between legislation and judiciary, emphasizing the authority of statutory law, and the effectiveness of statutory law takes precedence over other sources of law. Moreover, all laws are divided into public law and private law, with a complete legal system and clear concepts. Judges can only strictly implement legal provisions and may not create laws without authorization or violate the spirit of legislation.
4. Continental legal systems generally adopt a dual-track court system and pay attention to the distinction between substantive law and procedural law. The civil law system generally adopts a dual-track system in which ordinary courts and administrative courts are separated. Judges are appointed by the government after assessment. Substantive law and procedural law are strictly distinguished. Inquisitorial litigation is generally adopted.
5. The form and method of legal reasoning is deductive. Because judicial power is greatly restricted, laws can only be enacted by representative legislative bodies, and judges can only use established laws to adjudicate cases. Therefore, in civil law countries, the role of judges is to find applicable legal provisions from existing legal provisions, connect them with facts, and infer inevitable results.
The modern French legal system was established in the Napoleonic era, which not only laid the foundation for the subsequent development of French capitalism, but also had a significant impact on the legal systems of modern Western countries. France is the country that has promulgated the most constitutions in modern times, and the Declaration of Human Rights established a series of bourgeois legal principles. France is the earliest and most developed country in the West. The implementation of French Civil Code 65438 to 0804
Introduces the basic principles of bourgeois civil law. Its emergence marks the formation of the civil law system and is a milestone in the development of civil law after Roman law. The French Penal Code of 1810 was the first criminal code in modern times, embodying bourgeois criminal law principles. French procedural law laid the foundation for the civil law litigation system. French law is a representative of the civil law system and occupies an important position in the history of the world's legal system.
(1) The formation and development of the French legal system
1. The formation and development of the feudal legal system
The legal system of the French feudal period generally refers to 9 From the first half of the 18th century to the second half of the 18th century, all laws of the Kingdom of France lasted for nearly 1,000 years. Its beginning is marked by the breakup of Charlemagne's kingdom in 843 AD.
The French bourgeois revolution broke out in 1789. In the formation and development of the French feudal legal system, it went through three stages, namely, from the 9th century to the 13th century, when customary law was dominant, and from the 13th to the 16th century, when customary law became culture The period from the 16th century to the 18th century was the period when royal legislation became the main source of law, laying the foundation for the formation and development of the modern French bourgeois legal system.
2. The establishment of the bourgeois legal system
After the victory of the French bourgeois revolution, the feudal system was basically destroyed. Since the French Revolution was thorough and guided by a mature set of ideological theories, the legal system established after the Revolution was relatively systematic and complete, typically reflecting the interests of the bourgeoisie and having a great influence on the establishment and development of legal systems in other capitalist countries. From 65438 to 0799, Napoleon launched a coup and came to power. During Napoleon's reign, in order to affirm the results of the victory of the bourgeois revolution, maintain the private property system, consolidate bourgeois rule, and eliminate the phenomenon of legal inconsistency, Napoleon personally led large-scale legislative activities and compiled a series of codes. They are: 1804 French Civil Code, 1806 Civil Procedure Code, 1807 Commercial Code, 1808 Criminal Procedure Code, and 1810 Criminal Code. These five codes, together with the French Constitution, constitute France’s “six laws” system. The emergence of the French Six Laws marked the formation of the French bourgeois legal system and pushed the legislative activities of modern France to its peak. It should be pointed out that the formulation of the Civil Code and the Commercial Code not only provided France with the first civil law and commercial law, but also provided many countries in the civil law system with a legislative model that separates civil and commercial laws.
The Anglo-American legal system:
1. The concept of the Anglo-American legal system
The Anglo-American legal system, also known as the common law system, refers to the British legal system since the Middle Ages. The legal system that developed, especially its common law. Common law is a concept corresponding to equity, canon law, common law and statutory law.
Because common law has the greatest influence on the entire legal system, the common law system is also called the common law system. American law originated from the British tradition, but began to develop independently in the late 19th century and had a significant impact on world law. The distribution of common law systems mainly includes the United Kingdom (except Scotland), the United States (except Louisiana), Canada (except Quebec), Australia, New Zealand, India, Pakistan, Singapore, South Africa and Hong Kong, China. The spread of British legal tradition was mainly achieved through colonial expansion.
2. The evolution of the British and American legal systems
(1) The historical evolution of British law
1. The formation of common law
( 1) Anglo-Saxon law: Britain was controlled by the Anglo-Saxons from the 5th century to 1066. The laws implemented at that time were mostly common law and had little impact on English law.
(2) The origin of common law: After the Norman Duke conquered England in 1066, in order to consolidate his rule, he implemented the land enfeoffment system and centralization system. Among them, the command conference is an important institution for centralized governance. This body was a deliberative body attended by the king's cronies, bishops and nobles. It mainly assists the king in legislative, executive and judicial matters. Later, the institutions dealing with judicial affairs gradually became independent. By the time of Henry III, the Senate had established three royal high courts, namely the Court of Finances, the Court of Common Pleas and the Court of Queen's Bench, to deal with major cases directly related to the interests of the Crown. Because the Normans had no laws of their own before, their laws were formed through the decisions of these courts, known as case law. These judgments are binding on local court decisions. As the jurisdiction and influence of the Crown Court expanded. Its precedents had a huge impact on the law throughout the country. The case law of the Crown Court is the common law applicable in England. Mainly for common law in various places. In the time after the emergence of the royal court, there was a situation where the royal court coexisted with local courts and church courts. Local courts (including county courts and Baihu courts) mainly apply customary law, while church courts mainly apply canon law, which mainly governs marriage, family, inheritance and adultery. The conflict between the three is inevitable. The Crown Court extended its reach by issuing an order commencing proceedings. The so-called order for the commencement of litigation means that the plaintiff can ask the king to administer justice, and then issue a writ through the ministers of the British king. The writ requires the Sheriff of each county to order the defendant to comply with the plaintiff's demands or to be tried in the Crown Court.
2. The rise of equity.
The fundamental reason for the rise of equity is that the writ system and mechanical litigation procedures of ordinary courts are increasingly incompatible with the needs of reality, especially the development of capitalist production relations. Many people sought justice from the Privy Council and Parliament, and these disputes were dealt with by the Minister of Justice in the Privy Council. In 1474, the Lord Privy Council delivered the first judgment on his own honour. As cases increase. This body eventually became independent and became a Court of Chancery alongside the Royal Courts of Justice. The Court of Chancery applies completely different legal rules to cases heard in the ordinary courts. The law that developed from this became equity. Therefore, the rise of equity is mainly to adapt to the requirements of capitalist production relations. At the same time, it was also a measure to strengthen the rule of the English King, who wanted to use the Court of Chancery to limit the ordinary courts.
3. A necessary supplement to statutory law.
It should also be pointed out that in the UK, in addition to common law and equity, statutory law has also developed to a certain extent. The most typical ones are the Magna Carta and the three Westminster Statutes of England during the Edward I period. Special decree. and Henry VIII's Act of Usufruct.
4. The bourgeois revolution and the formal formation of the common law tradition.
With the victory of the bourgeois revolution, in order to adapt to the needs of capitalist development, British law has been reformed, mainly as follows: (1) The conflict, compromise and unification of common law and equity. On the eve of the Revolution, the struggle between common law and equity was a manifestation of the struggle between Parliament and the monarch. With the victory of the revolution, common law and equity compromised each other and developed harmoniously. By 1873 and 1875, with the promulgation of the two Judiciary Acts, the ordinary courts and the courts of equity merged, but the coexistence of common law and equity continued to exist. (2) Limitations on the jurisdiction of church courts.
In 1857, the jurisdiction of the ecclesiastical courts over secular cases was abolished and divorce and probate courts were established. (3) A large number of statutory laws have emerged. Including public law laws, such as the Bill of Rights, the Act of Succession to the Crown, the Habeas Corpus Act, the Uniform Procedure Act, the Common Law Procedure Act, the Company Act, the Partnership Act, the Instrument Act, the Sale of Goods Act, the Intrusion of Personal Status Act, the Theft Act, etc. The increase in statutory law marked the rise of Parliament. This trend continues to this day. It should be noted that these laws are one-way laws.
(2) Historical evolution of American law
1. Colonial law
From 1607 to 1776. In the early days of colonization, that is, in the 17th century, British law had little influence on the North American colonies. The applicable laws at that time were mainly rough local laws in the colonies. But in the 18th century, Britain tightened its control over the North American colonies and enforced British laws by force. At the same time, more and more people became familiar with English law, which played a large role in the spread of English law in North America.
2. The formation of American legal tradition.
In 1776, after the United States became independent, it began to have its own laws. By the 19th century, the American common law tradition was finally established. The most fundamental reason is that Americans are British immigrants with the same language and traditions. Moreover, British law had a certain influence on American law during the colonial period. Coupled with the spread of legal theory. The United States finally embraced the common law tradition. However, American law also exhibits some characteristics that are different from British law. If a written constitution is adopted, statutory law will occupy a greater proportion. Louisiana retains a tradition of civil law. It simplified the proceedings and eliminated the distinction between the courts of common law and the courts of equity. After the American Revolution, its law became an independent branch of the common law system.
3. Main characteristics of the common law system
(a) In terms of legal thinking and operation, the common law system uses distinguishing techniques. The pattern of this approach can be summarized as: 1. Use the inductive method to summarize the legal facts in previous cases; 2. Use the inductive method to make inductive judgments on the legal facts of the case; 3. Divide the legal facts in the two cases into substantive facts and non-substantive facts; 4. Through comparison Analyze whether the substantive facts of the two cases are the same or similar. 5. Find the rule or principle contained in the precedent. 6. If the substantive elements in two cases are the same or similar, the rules or principles contained in the precedent may be applied to the pending case under the principle of stare decisis. There are three ways to deal with precedents: 1. Follow precedent; generally speaking, lower courts should follow the precedents of higher courts, and courts of appeals should also follow their previous precedents. 2. Overturn precedent. In the United States, both the federal Supreme Court and state supreme courts have the power to overturn previous decisions. 3. Avoid precedent; mainly applicable to situations where the lower court is unwilling to apply a precedent but is unwilling to overturn it publicly. It can avoid this precedent on the grounds that there are substantial differences between the first and second instance cases.
(2) In legal forms, case law occupies an important position. Traditionally, the common law system has been dominated by case law, but its statutory law has also been increasing since the 19th century, but statutory law is still subject to the interpretation of case law. Case law generally refers to legal principles or rules established in High Court decisions. Such principles or rules are binding or influential on future judgments. Case law is also statutory law. Because these rules are created by judges when hearing cases, they are also called judge-made laws.
In addition to case law, countries with common law systems also have a certain number of statutory laws and some codes. Such as the "Uniform Commercial Code" and the "United States Constitution". However, compared with the civil law system, it still has fewer statutory laws and codes, and its impact on the legal system is far less than case law.
The relationship between case law and statutory law is an interactive and mutually restrictive relationship. Statutory law can change case law. At the same time, in the application process of statutory law, case law can amend the statutory law through the interpretation of judges. If this interpretation deviates too far from the legislator's intention, it will be changed by the legislator in the form of statutory law.
(3) In terms of legal classification, the Anglo-American legal system does not have a strict concept of departmental law, that is, there is no systematic and logical legal classification. Their legal classification is more practical. The reasons are as follows: 1.
The Anglo-American legal system has attached great importance to writs and litigation forms from the beginning. This division of litigation forms itself lacks logic and systematicity, which has hindered the scientific research of legal classification by British jurists. 2. The Anglo-American legal system emphasizes case law but opposes codification. Case law emphasizes practical experience and ignores abstract generalizations and theoretical discussions. 3. The common law system is divided into ordinary courts and equity courts in terms of court settings. The division between common law and equity is, from a political point of view, a manifestation of the dispute over the rights of Parliament and the King, and from a legal and technical point of view, equity modifies and supplements the shortcomings of the common law. Equity is based on common law. The value of his explanation lies in pointing out the conflicts and contradictions between universal justice and individual justice. There is no difference between ordinary courts and administrative courts. Therefore, there is no clear difference between cases involving the regime and ordinary private cases. This also hinders the classification of law, especially the formation of the concepts of public law and private law. 4. In the development of the Anglo-American legal system, judges and lawyers are the main driving forces. Moreover, the education model is mainly apprenticeship, which determines that they are more related to specific cases. and disdained legal classification in an abstract theoretical sense. Furthermore, as mentioned earlier, the common law system has a long tradition of dividing common law and equity. Although there is currently no distinction between common law and equity courts, the distinction between common law and equity still exists to this day.
(4) In terms of legal education, the Anglo-American legal system mainly focuses on American vocational education. Students have obtained a bachelor's degree before admission. The teaching method is case teaching method, focusing on cultivating students' practical ability. After graduation, a doctorate in law (J, D) is awarded. Each school has greater autonomy and is not subject to restrictions by educational administrative agencies. In the UK, university legal education is somewhat similar to the civil law system, which also focuses on systematic teaching. But before graduating from college, they must undergo training from a law school or bar association. Education at this time was mainly vocational education, still influenced by the apprenticeship education tradition.
(5) In the legal profession. Career mobility is high, and judges, especially federal court judges, are generally lawyers. Lawyers are very active in politics. The social status of judges and lawyers is also higher than that of civil law.