Comparative law english version

TABLE OF CONTENTS INTRODUCTION If the question is asked, what is the difference between, on the one hand, a civillaw system, and on the other hand, a common law system, the answer usually given is that the civillaw is codified, whereas the common law is formed by case law Now, every common lawyer knows that this gives a false picture of the actual situation In all common law jurisdictions, an abundance of statute law exists and in the course of time the legislator has intervened with increasing frequency in order to consolidate, supplement and alter the judge made law On the other hand, every civil lawyer knows that the view that the whole law can be found in the codes or in supplementary legislative enactments is a fallacy and that the courts, guided by legal doctrine, have developed, supplemented and sometimes even altered the written law Therefore, we choose the topic: “Commentaries on the development tendency of case law as a sources of law in Civil Law countries.” for our Group Assignment This research assignment will, first, outline a key historical condition that is said to have given rise to this relative devaluation of the role of case law in civilian systems — namely, the particularities of ancient Roman dispute resolution Secondly, despite such origins, the de facto use of precedent will be examined, focusing on its role in the courts of the European Union Thirdly, and finally, this paper will look at the reasons why this use is not only inevitable, but proper and only likely to increase as civil law systems continue to develop CONTENT In the past, especially in Ancient Rome, Judicial Decision-Making plays unimportant role in dispute resolution while legislation covers all possible disputes Since the [Roman] praetor was appointed for only one year and played a limited role in the resolution of cases, his decisions and rulings in particular cases were not accorded any particular weight or significance Likewise, there was little respect accorded the decisions of the judex The judex was appointed to decide only a particular case The practice of having, in effect, two judges in every case, with the judex selected only for the particular case, represented a split in the judicial process There was no continuity in litigation, and no chance for the development of legal principles among the various cases presented for resolution A judicial decision-involving actions by two separate judicial officials-resolved an individual case, and that was the end of the matter As such, it is for the judiciary to apply law-not make it-in its determination of these, 3because The task of the [civil law] judge is simply to select the appropriate rule from among those pre-existing in the code and apply it to the case at bar Existing Acceptance of Precedent at Civil Law It is argued that it is not clear that there is, in substance, any functional difference between the accepted doctrines regarding existing case law as between civil and common law systems Conversely, what is clear is that the J.G SAUVEPLANNE (1982), Codified and Judge made law: The Role of Courts and Legislators in Civil and Common Law Systems, NORTH-HOLLAND PUBLISHING COMPANY - AMSTERDAM/ OXFORD/NEW VORK Apple and Deyling, above n 8, at See Shapiro, above n 10, at 126 orthodox limits with respect to the civil law's uses of such case law are increasingly disregarded Such developments are best exemplified by their use in the courts of the European Union and, specifically, the Court of Justice4 The first point of note in this respect is the existence of precedent in the courts that functions analogously to that found at common law Specifically, and relatively quickly after its establishment, the Court of Justice extended its determinations to have effect beyond the parties to the particular dispute before it.5 Secondly, beyond its mere existence, however, the courts of the European Union have also confirmed that this precedential doctrine operates on the same implicit basis as in common law jurisdiction However, the justification given for the above usages is that their function is interpretative, rather than law-making, in its nature That is, civilian jurists argue that the use of precedent in this way is not a formal source of law but, rather, an interpretation of the law — albeit a definitive one Consequently, modern practice would be best served by systematisation of such practices so as to maximise, rather than baselessly undermine, the propriety of their role in lawmaking Legislative Limits The ideal of legal codification, being the complete encapsulation of the law, may in fact be misguided in principle Evidencing this is the fact that, after centuries (if not millennia) of attempts, no such system has been achieved to date By way of example, and despite such intentions, the French Civil Code was at no point in time "a complete and exclusive body" of law Rather, it was a subset of the civil law of the period — notably omitting to include not only procedural law, as codified in the separate French Code of Civil Procedure, but Unless otherwise stated, references in this research paper to the Court of Justice are to the European Court of Justice (as distinct from the wider Court of Justice of the European Union) Igor Tokmadzic (2016), “The case for case law: Recognising Precedent in civil law systems”, Gcertlaw Research paper laws 533: Civil law for Common lawyers Julie Dickson and Pavlos Eleftheriadis (eds) Philosophical Foundations of European Union Law (2012), Oxford University Press, Oxford, at 328 and 329; and see also Beck, above n 43 Shapiro, above n 10, at 133 Code de procộdure civile franỗais (1806) also substantive law, such as the subsequent French Commercial Code Notably, added to this is the fact that such a system is no longer said to function as a code per se, in that it functions through yearly amendments, reprints, consolidations and appendices of case law and commentary — such that it has been described as being closer in nature to a database than a code 10 Lawmaking through legislation is appropriate where the laws reflect a certain level of generality At a higher degree of specificity, attempts at codification will be futile and it is precisely at this degree of specificity that there exists both a role for judicial lawmaking (however defined or jurisprudentially conceived) as well as for a systematic, precedential approach to this Such a conclusion, ultimately, is inescapable because of nothing more than generic, linguistic limitations.11 Inevitability and Propriety of Precedent While legislatures created and developed bodies of law outside the sphere of the civil codes, the courts have introduced new rules through the interpretation of the code provisions This judicial adaptation of the codes to new social and economic conditions has produced a new body of law, which is based on the expansion through interpretation of the existing legislative texts In some civil law countries, such as France, this process has been facilitated by the structural characteristics of the civil code-its gaps, ambiguities and incompleteness The drafters of the French Civil Code never imagined or anticipated the litigation-producing aspects of modern life such as industrial and traffic accidents, telecommunications, the photographic reproduction of images and mass circulation of publications Thus, it is no surprise that in essence the modern French law of torts is almost entirely judge-made Regarding the later codes, such as the German Code, the judicial adaptation of the civil law to changing social and economic conditions was facilitated by the inclusion in the codes of ‘general clauses’-provisions that deliberately leave a large measure of discretion to judges Although traditional civil law theory denies that judges make law or that judicial decisions can be a source of law, contemporary civil law systems are more openly recognizing the unavoidable dependence of legislation on the judges and administrators who interpret and apply it Code de commerce franỗais (1807) 10 Iain Stewart(2012), "Mors Codicis: End of the Age of Codification?" 27 Tul Eur & Civ LF 17 11 David Lieberman "The Challenge of Codification in English Legal History" (Presentation to Research Institute of Economy, Trade and Industry (Japan), 12 July 2009) at and 4 Although there are many obstacles as stated, the important meaning of the case law in Civil Law system is increasingly recognized and proved in the development process of the law Because of Civil Law and Common Law, although there are many differences, however, more and more they tend to converge Nowadays, Civil Law system tends to attach more importance to law Civil Law system attaches great importance to legal theory, has a high level of systematization and legalization to the Civil Code which was born very early and massive Representatives for this family can include French, German, Italia, etc However, Civil Law system increasingly attaches importance to the judgment of the court This is reflected in two issues: - From the nineteenth century, the constitutional mechanism was born, so there existed constitutional organizations (in Germany the Constitutional Court) Therefore, the constitutional ruling is binding on lower courts In Germany, the federal constitutional court and other federal courts have full authority to build legal cases The lower courts are obliged to carry out the law of these courts, or their judgments may be subject to cassation - During the trial process, to ensure the consistency in the trial, ensure the correctness of professional expertise as well as show respect for the judgment of the superior court, the lower court always tends to attend Refer to the sentence that has been declared, based on that to make a decision for your specific case Court rulings often refer to the rulings previously announced This can also be considered as a manifestation of the use of case law in Civil Law system Although most of the countries of the civil law system promote the role of text law sources, these countries also pay much attention to the use of legal cases as supplementary sources of legal documents in the form of Supreme Court Trial In these countries, the Supreme court has two main tasks: - Correct for lower courts by destroying false judgments; and - Explain the law to overcome the lack, backwardness and unclearness of legal documents The second mission of the Supreme court is seen as a creative and legal activity created by this path Explaining the law of the Supreme court will create precedent, when lower courts encounter similar cases, they will use the supreme court interpretation even though this is not a mandatory obligation for them The judges have the right to explain in their own way but if they not convince the Supreme court, their sentence is in danger of being canceled Therefore, usually judges will explain in the way of the Supreme court in the same case In order to serve the application of a unified law throughout the country, the Supreme court in these countries issued legal cases, which enabled judges to grasp the legal position of the Supreme court in cases where written laws are not specified or regulations are unclear CONCLUSION In conclusion, the changes in the legal universe that have been taking place in the last few decades, associated with the ongoing tendencies of globalization and regional integration, make it difficult for us to predict how the civil law tradition will evolve or how it will be described by future observers However, we can be reasonably certain that this oldest and most influential of the Western legal traditions has entered a new phase of development and that it will continue to adapt itself to the challenges of an ever-changing world.12 BIBLIOGRAPHY Code de procộdure civile franỗais (1806) Code de commerce franỗais (1807) Apple and Deyling, above n 8, at Julie Dickson and Pavlos Eleftheriadis (eds) Philosophical Foundations of European Union Law (2012), Oxford University Press, Oxford, at 328 and 329; and see also Beck, above n 43 12 MOUSOURAKIS George, Roman Law, Medieval Jurisprudence and the Rise of the European Ius Commune: Perspectives on the Origins of the Civil Law Tradition., p 83-85 Mousourakis George, Roman Law, Medieval Jurisprudence and the Rise of the European Ius Commune: Perspectives on the Origins of the Civil Law Tradition Iain Stewart(2012), "Mors Codicis: End of the Age of Codification?" 27 Tul Eur & Civ LF 17 David Lieberman "The Challenge of Codification in English Legal History" (Presentation to Research Institute of Economy, Trade and Industry (Japan), 12 July 2009) at and J.G SAUVEPLANNE (1982), Codified and Judge made law: The Role of Courts and Legislators in Civil and Common Law Systems, NORTHHOLLAND PUBLISHING COMPANY AMSTERDAM/ OXFORD/NEW VORK Shapiro, above n 10, at 133 10 Shapiro, above n 10, at 126 11 Igor Tokmadzic (2016), “The case for case law: Recognising Precedent in civil law systems”, Gcertlaw Research paper laws 533: Civil law for Common lawyers ... Union) Igor Tokmadzic (2016), “The case for case law: Recognising Precedent in civil law systems”, Gcertlaw Research paper laws 533: Civil law for Common lawyers Julie Dickson and Pavlos Eleftheriadis... important meaning of the case law in Civil Law system is increasingly recognized and proved in the development process of the law Because of Civil Law and Common Law, although there are many differences,... (2016), “The case for case law: Recognising Precedent in civil law systems”, Gcertlaw Research paper laws 533: Civil law for Common lawyers