(Tiểu luận) comparison between the two systems of law civil law and common law take examples of those systems from any countries

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 th Hà Nội, November 24 , 2022 Contents ESSAY I GENERAL DESCRIPTION Definition and importance of law .3 Introduction of legal system 3 Types of law II Common Law .4 Definition Types of Common Law Advantages and disadvantages III Civil Law What is the Civil Law? Types of civil law .6 Advantages and Disadvantages of civil law IV Comparison between Civil law & Common law V Examples 10 VI Exercises 12 Reference sources: https://www.investopedia.com/terms/c/common-law.asp https://learn.financestrategists.com/finance-terms/commonlaw/?gclid=Cj0KCQiA99ybBhD9ARIsALvZavVhE5cYvW3ABq92K7GGrmySnG L94hxAaBdIjaUr3xdFbtJ0Xa9pKwAaAhtGEALw_wcB http://www.luatsuvlc.com/so-sanh-he-thong-phap-luat-common-law-va-civil-law- 716986662.html?fbclid=IwAR2THog9kBE7FFOi8mgekZJphslYuQ7RS0ccmN-SEkTJoyYt6H5mxcVv2o https://www.theatlantic.com/national/archive/2012/06/what-america-canlearn-from-germanys-justice-system/258208/ I GENERAL DESCRIPTION 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 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 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 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 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 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 Types of Common Law There are two types of Common Law: - General common law is where laws are created for situations and circumstances that 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 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 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 ) ~ 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 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 Document continues below Discover more from: Finance FIN300 999+ documents Go to course Bai tap Gia tri thoi gian cua tien Finance 100% (63) 10 GT học phần Chủ nghĩa xã hội khoa học K Tr 67 Tr144 Finance 100% (17) 78 Bài tập Nguyên Lý thống kê có đáp án Finance 95% (205) 38 Bai Tập Nguyen Lý Thống Ke Bản Đủ Finance 95% (41) 38 Chapter answer key Finance 28 Ch answer keys FOR corporate fnance 100% (10) Finance 100% (10) 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 Civil Law Common Law Both systems have similar sources of law- both have statutes and Evolution both have case law, they approach regulation and resolve issues in different ways, from different perspectives Legal system originating in Europe whose most prevalent Legal System The legal system is 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 as the primary source of law Role of judges 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 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 Constitution Always Not always Only used to determine Used to rule on future or present Precedent administrative of cases constitutional court matters 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 the U.S., juries are employed in vary by state and country both civil and criminal cases Role of jury Juries are present almost Their function is to weigh exclusively in criminal cases; evidence presented to them and virtually never involved in civil actions Judges ensure law prevails over passion to find the facts and apply the law History The civil law tradition Common law systems have developed in continental evolved primarily in England Europe at the same time and and its former colonies, 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 Constitution Legislation – statutes and Constitution (not in the UK) subsidiary legislation Legislation – Statutes and Custom subsidiary legislation International Law Sources of Judicial precedent – common Nota bene: It may be Law law and equity argued that judicial Custom precedents and conventions Convention also function within International Law Continental systems, but they are not generally recognised Inquisitorial Judges, not Adversarial Lawyers ask Type of lawyers, ask questions, and argument and demand evidence Lawyers role of present arguments based on lawyers with the evidence the court questions of witnesses, demand the production of evidence, and present cases based on the evidence they have gathered finds Evidence demands are within Evidence the sovereign inquisitorial Widely understood to be a function of the court — not necessary part of the litigants’ 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 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 crystalclear illustration of how a civil justice system can function more effectively GERMANY (CIVIL) THE UNITED STATES (COMMON) Parties in Germany are required to In contrast, plaintiffs in the United inform judges of their claims right States provide few facts and scant away German plaintiffs must provide evidence in their complaints They had evidence to back up their assertions to at least state the facts before 1938 in their complaints They must specify the supporting documentation they intend to use, and defendants must, whenever possible, substantiate their denials with facts German judges are involved in cases from Judges not typically review the beginning Plaintiffs' complaints are complaints before service or at any initially read by judges, not by defendants other time in the United States On the Judges review complaints after they are defendants' request, they may review filed to ensure that they comply with particular areas after service, but this procedural requirements and to decide post-service review is more time- whether the facts asserted will consuming and expensive than its 10 justify judgements if proven The German counterpart The requirement defendants are only served with that there be a determination which the complaints after judges have considered asserted claims are legally "plausible" them; unfounded complaints typically (embodied in two recent Supreme don't proceed this far Court decisions, Twombly and Iqbal) was received with vociferous criticism In Germany, parties and courts work Early pretrial conferences are not together to frame disputes German judges frequently held by courts in the United typically order parties to enter joint States, and when they are, they are conferences when they approve typically used to set deadlines rather complaints for service Judges consult with than to outline concerns They hardly both sides at these meetings, not just their ever demand the presence of the attorneys but also the parties to the dispute plaintiffs Parties are not obligated to themselves The problems that they must work together (although the Federal consider in order to judge cases are Rules Committee is currently framed during negotiations with the parties considering one) 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 Judges in Germany only take evidence on In contrast, the parties themselves disputed matters of material fact Judges decide what evidence should be sought don't waste their time on evidence that isn't in the United States They may compel relevant to their decisions, i.e., their opponents to reveal any material evidence that doesn't help settle a they deem "relevant" to a claim or contested material issue Parties may defense without a court order and request the court to take evidence for outside of court They are not matters that are important and in dispute restricted to gathering evidence Judges make decisions about these related to important and contentious requests in written orders that specify the issues, resulting in exorbitantly issues on which individual witnesses' expensive and time-consuming testimony may be used as evidence They evidence-gathering free-for-alls 11 only gather evidence in court A statutory duty of clarification imposes on judges the requirement that they refrain from issuing unfavorable decisions on key issues without first informing the parties that they must present evidence or otherwise challenge the specific issue German judges give reasons for their In bench trials, which are very choices German trial judges are uncommon in the United States, obligated to properly explain their judges provide justification for decisions, which includes stating the their choices; however, jury trials uncontested facts of the case, outlining leave the parties in the dark the parties' divergent positions, and outlining their justifications for how they chose to resolve the disputed matters VI Exercises The current legal system of Vietnam is A Common Law B Civil law with modifications from Maxist-Leninist ideology C Feudal legal system D Civil law with modifications from French legal system The principle of the State of Vietnam is 12 A Democratic decentralism B Centralism and decentralism C Democratic centralism 3.The basic functions of Government are A administration of Laws, abolishment of Laws B enforcement of Laws, promulgation of Laws C administration of Laws, enforcement of Laws Purposes and Functions of Law A Establishing standards, Maintaining relationships, Resolving disputes, B Protecting conflicts C Establishing relationships, Maintaining order, Resolving disputes, Protecting D Liberties and rights E Establishing standards, Maintaining order, Resolving disputes, Protecting liberties and rights The law will protect humans from A Justice system B Other people who want to harm to mankind C Groups fighting for specific rights The law A Promote the common good B Promote special organizations C Promote special social groups The law is a guide post for minimally acceptable behavior in society A True B False In Common law A Judicial cases are the most important source of law B Codes and statutes cover all eventualities C Judges not contribute to rules In Civil law A Judicial cases are the most important source of law 13 B Codes and statutes cover all eventualities C Judges can contribute to rules 10 In Common law A Judges are more like investigators B Judges are rather arbiters C Judges are more like guides 11 In Civil law A Judges are more like investigators B Judges are rather arbiters C Judges are more like guides 12 In Common law A Judges ask questions and demand evidence B Lawyers ask questions of witnesses and demand production of evidence C Lawyers are arbiters 13 In Civil law A Judges ask questions and demand evidence B Lawyers ask questions of witnesses and demand production of evidence C Lawyers are arbiters 14 Vietnamese Law A Is supported by state coercion B Applies to a specific part of country C Is an unstable and diversified system D Is a system of relations 15 The country uses Common Law: A Japan B Spain C China D The UK 16 The country uses Civil Law: A The USA B Australia 14 C Germany D Canada 15