Group assignment subject legal english 02

MINISTRY OF JUSTICE HANOI LAW UNIVERSITY  GROUP ASSIGNMENT SUBJECT: LEGAL ENGLISH 02 TOPIC: COMPARATIVE LAW CLASS : N03 GROUP : 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: Ngơn Ngữ Anh Khố: 44 Tổng số sinh viên nhóm: 04  Có mặt: 04  Vắng mặt… Có lý do:… Khơng có lý do…  Nội dung: Comparative law Tên tập: Bài tập nhóm Mơn học: Văn hóa Anh-Mỹ Xác định mức độ tham gia kết tham gia sinh viên việc thực tập nhóm với kết sau: ST MÃ T SV HỌ VÀ TÊN ĐÁNH GIÁ SV KÝ ĐÁH GIÁ CỦA GV CỦA SV A B C TÊN ĐIỂ ĐIỂM GV M (Chữ) (Ký tên) (số) 44301 Đỗ Thùy Dương  2 44301 Nguyễn Thị Hải Yến  44302 Nguyễn Nhật Quang  44302 Bùi Hương Giang  Kết điểm viết: Kết điểm thuyết trình:…………… Điểm kết luận cuối cùng:……………… Hà Nội, ngày 12 tháng NHÓM TRƯỞNG Nguyễn Nhật Quang 11 năm 2021 TABLE OF CONTENT OPENING BODY I AN OVERVIEW OF COMPARATIVE LAW 1 Notion of Civil Law .2 Notion of Common Law .2 Examples of countries practising Common Law and Civil Law II Differences between Common Law and Civil Law Sources of law .4 Legislation .5 Legal education and research Procedural differences – adversarial vs inquisitorial/proceedings’ purposes III COMMENTS .10 Civil Law .10 Common Law 10 CONCLUSION .11 REFERENCE 12 OPENING 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 A Harding & E Oeruecue, Comparative Law in the 21 st Century (Kulwer Academic Publishers, London, Hague, NY, 2002) pp 1-54 1 Based on the comparative research, method, Civil Law and Common Law shall be specified 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 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 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 R David & J.E.C Bierley, Major Legal Systems in the World Today (Stevens & Sons, London, 3rd ed., 1985) Introduction 2 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 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 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 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 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 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 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 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 Procedural differences – adversarial vs inquisitorial/proceedings’ purposes  Role of judges and lawyers3 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 See: What is the Difference Between Common Law and Civil (https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/) (accessed November 12th 2021) Law? 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 proceeding4 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 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 Needless to say, the ‘right decision’ depends on each party’s own view Procedural rules in civil law focus rather on the settlement of the dispute This also explains the parties’ limited role in presenting evidence In civil law, it is all about finding out the most likely version of the facts of the case So it is more or less accepted that sometimes decisions may not be ‘right’, that is, are not based on the absolute truth In civil law, it is usual that in a first procedural step the parties present the case extensively in writing, which means the parties substantiate all the relevant facts of the case, bring forward the needed evidence for their allegations (offer evidence)and give reasons for their pleadings Then, after some correspondence mainly between the two parties but with the involvement of the court, a trial takes place before the court, in which the judges check all the evidence offered by the parties and conclude by giving a decision For common law proceedings, it is typical that first of all the parties collect all the evidence, in many cases very extensive pre-trial-discovery which includes gaining access to the opponent’s files While in civil law each party generally has to prove its claim with its ‘own’ documents, that means with documents in its possession, and while it is a rare exception if a judge follows a party’s demand and orders that the opponent has to deliver documents, the parties in common law have the right during the pre-trialdiscovery, so even before they have to give full reasons for their claim, to get broad access to all relevant documents which are in possession of the opponent III COMMENTS Civil Law  Advantage of Civil Law: - A Civil law, legal tradition is more accessible Civil law uses career judges, trained, and managed as such; thereby, civil law provides an active and positive approach to assuring a competent and independent judiciary - Legal codes and statutes in general are written in a simple and logical manner Codes describe broad principles, to which all situations can be applied in; thereby, the code is easier to read, at least on a theoretical level, than the statutes and/or cases in common law systems  Disadvantage of Civil Law - A judge can never interfere in the domain of law by giving wide interpretations A judge can only apply written law with a narrow margin of appreciation This can lead to injustices Common Law  Advantage of Common Law - Common law can evolve better to adapt to modern society than systems based on written rules because it is easier and less costly for judges to decide than for legislators pass laws to remedy every situation - The doctrine of precedent works effectively for the most part because it provides stability and consistency in the legal system Parties 10 involved in trials and hearings can understand that decisions made are based on precedent, rather than personal views or arbitrary judgement  Disadvantage of Common Law - Common law can be old and is frequently based on archaic concepts - Common law is not all officially laid down and plainly in unambiguous or structured language like statutes - If a bad court decision has been made, it will be perpetuated as common law systems are all about following precedents Changes will take a long time to happen, so in the meantime, a bad decision will continue to be upheld CONCLUSION This assignment has introduced and compared the two important legal traditions of common law and civil law in an overview manner In a short time, both systems will begin to acquire more positive aspects among them and eliminate some of the negative aspects that surely exist The aforementioned differences will help researchers, academics as well as lawyers to understand better In addition, the advancement of comparative law relating to two legal systems will provide a change in the method of teaching law and researching 11 REFERENCE Mathias Reimann & Reinhard Zimmermann (2006), the Oxford, Handbook of Comparative Law, Oxford University Press Max Rheinstein (1952), Common Law and Civil Law: An Elementary Comparison, University of Chicago Law School, Fernando Orrantia, Conceptual Differences Between The Civil Law System And The Common Law System, Symposium on Doing Business in Mexico: The Legal, Cultural and Practical Aspects (https://heinonline.org/HOL/P? h=hein.journals/swulr19&i=797) A Harding & E Oeruecue (eds) (2002), Comparative Law in the 21st Century, Kulwer Academic Publishers, London, Hague, NY Paul H Rubin (2007), The Evolution of Efficient Common Law, An Elgar Reference Collection H Patrick Glenn (2000), Legal Traditions of the World – Sustainable Diversity in Law, Oxford University Press Matteo Nicolini (2019), Comparative Law and Legal Traditions – Historical and Comtempory Perpectives, Springer Press Maurice Adams and Jacco Bomhoff (2012), Practice and Theory in Comparative Law, Cambridge University Press 12