introduction to law

2012-2013学年第一学期

实 验 报 告

实验课程名称 Introduction to Law

专 业 班 级 管双联1202

学 生 姓 号 31205737

学 生 姓 名 陈炅堃

实验指导教师 丁扬阳

字数统计：1213
Difference between Common Law and Civil Law
In today’s world, common law legal systems are in use in England where it originated, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, India, Canada, Ireland, South Africa, Hong Kong, Australia and etc. But there are also some countries use civil law such as China、French and Japan. So what is the difference between common law system and civil law system? Here are some comparison with them.

Common Law: In Common Law systems, the law continually evolves in addition to being amended by laws passed by the legislature. If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court-the decision of the higher court is a binding precedent. And common law is based on precedent and has been used since before the time when laws were first written down. This system of justice was developed in England and is still being used in Australia, most of Canada, England, India and the United States, except for the state of Louisiana. Judges, who are asked to interpret written law, make decisions, which are then used as precedents for future cases. The Canadian province of Quebec and Louisiana in the United States operate under the civil law system.
In the common law system, law is interpreted, thus, "written" by judges hearing the cases. Their decisions become the ‘rule of law’ for all future cases that are factually similar. The civil or codified law is law that is written into statute or code books and are strictly interpreted by the courts of that country. When lawyers are preparing for trial in a common law country, they look to legal precedents to determine how the court may rule on a certain type of case. The judge may want to receive submissions of case law to support each side's position. Under a civil law system, the lawyers and the judge will refer to the written law, or code, for guidance. The code includes laws relating to property, commercial enterprises and individuals.
And in the country which uses common law has a legal system based primarily upon past judicial opinions. These judicial opinions are interpretations of legislation, which are considered more as a guide than as literal requirements such as under civil law. Thus, common law systems acquire their laws over time and may have their laws altered by single rulings. This practice allows for a more flexible and expeditious legal system bypassing the often reluctant and slow-moving legislative system. Because it was developed in England, modern examples of countries which use common law are typically former English colonies such as Australia, India, Canada, and the United States.
The benefit of a common law system is that you can be confident of what will happen in your case if a similar case has been heard before. The drawback is that if you have an unusual case, there is nothing to stop a judge creating a new law and applying it to your case.

Civil Law:
A Civil Law country has a body of law (passed by Parliament) that can be referred to in each individual case and there is no such thing as binding precedent. It is the most prevalent and oldest surviving legal system in the world and is found in continental Europe, much of Latin America and in parts of Asia and Africa.
Civil law is a term that can be used to describe two different legal concepts. On the one hand, it is used to describe a body of law that is centered around finding peaceful resolutions to non-criminal disputes. On the other hand, the term civil law denotes a legal system that is practiced in many countries around the world.In the context of a non-criminal method of resolving disputes, civil law covers a wide range of areas. For instance, it encompasses issues relating to divorce cases, child custody suits, and child support proceedings. In addition, it covers business disagreements, such as a contract dispute. Civil law also includes lawsuits brought to recover damages to property or to a person as well as property ownership issues. Each country generally has its own set of civil laws that have been developed by courts or legislators.
By and large, a civil law court is a means for people or entities to resolve legal disputes in a peaceful and orderly manner. Most civil courts seek to provide a legal remedy to a problem, such as paying monetary damages, agreeing to perform in a certain manner, or abstaining from a certain activity. Civil law can be based on statutes, judge-made rulings, or both, depending on the particular jurisdiction.
Civil law is different from common law in a number of ways. This type of legal system originated from Roman law, and is still the standard in a number of countries around the world. In jurisdictions where civil law is the method of justice that is being used, judges enforce the law strictly as it is written. People who are subject to civil law understand that when it comes to meting out punishments, a judge in a case will look at the legislation to determine the appropriate sentence or fine.Under a civil law system, cases are decided by judges who are specially trained for their role. In common law countries, a person who is interested in becoming a judge must first go through the process of getting the education required to become a lawyer. The next step in the process is to practice for a number of years before being elected or appointed to the bench.
The benefit of a civil law system is that you can only be judged by the laws which were actually written down in front of you at the time. The drawback is that even if previous cases show you should win your case, there is no guarantee a judge will interpret the code in the same way on your case.

Here’s an Example from internet1:
In the U.S. (except Louisiana), if you want to know what the law is, you check the statutes, rules and regulations. But you also need to review how these laws have been interpreted and applied by reviewing past legal cases.Under the Civil Code your inquiry stops with the statutes, rules and regulation-the Civil Code itself. Forget about creative interpretations of the law, or complying with the spirit of the law rather than the letter of the law.If the Civil Code says that you need to do X, you need to do X. There is no room for making analogical arguments, such as since doing Y would have the same result as doing X, it should be okay-and perfectly legal-to do Y rather than X. You might as well stop the analysis, and get ready to follow the letter of the law exactly, even if you can think of a hundred different and perhaps better ways to accomplish the same thing.
In a world, although the distinction between the two systems is a basic tenet of international law, their different legal approaches should be factored into every major international business decision that is made.