Anglo-American law system, also known as common law system. Refers to the general term for laws developed on the basis of English common law. It was first produced in the United Kingdom, and later expanded to many countries and regions that were once British colonies and dependent countries, including the United States, Canada, India, Pakistan, Bangladesh, Malaysia, Singapore, and individual countries and regions in Africa. From the 18th to the 19th century, with the expansion of British colonies, English law was introduced into these countries and regions, and the common law system finally developed into one of the world's major legal systems. They have certain differences in legal classification, constitutional form, and court powers. The main feature of the common law system is to pay attention to the continuity of the code, with case law (a simple interpretation of case law is how to judge before, and how to judge now) as the main form. Civil Law System The
civil law
system, also known as the civil law system, the code law system, the Roman law system, and the Roman-Germanic law system, is the general term for laws developed based on Roman law. It first appeared in the European continent and later expanded to Latin and Germanic countries. Roman law in history has civil law as its main content. France and Germany are the two typical representatives of the legal system. In addition, they also include countries and regions that were colonies of France, Spain, the Netherlands, and Portugal in the past, as well as countries such as Japan, Thailand, and Turkey. The law of the old Chinese Kuomintang government, the civil law system, represented by the "French Civil Code" of 1804 and the "German Civil Code" of 1896, formed two tributaries.
The difference between the
two major legal systems The two major legal systems have a legal history tradition or the macro-level differences between them:
source of law
1. From the tradition of source of law, the civil law system has a tradition of statutory law. The statutory law is Its main source of law, case law is generally not regarded as a formal source of law (except for administrative cases), and has no binding force on court trials; while the common law system has a tradition of case law, and case law is its formal source of law, that is, the case law of a higher court has an impact on the lower level. The court is binding in hearing similar cases.
codification
2. From the perspective of the codification tradition, some basic laws of the civil law system generally adopt the form of systematic codes. The Anglo-American legal system generally does not favor the form of codes, and its statutory laws are generally separate laws and regulations. Although contemporary common law systems have learned from the statutory traditions of civil law systems, most of them have collected and revised their legal precedents.
Legal structure
3. From the perspective of legal structure tradition, the basic structure of the civil law system is established on the basis of the classification of public law and private law. Public law in the traditional sense refers to the constitution, administrative law, criminal law, and procedural law; private law mainly refers to civil law and Commercial law, the basic structure of the common law system is established on the basis of the classification of common law and statutory law. Historically, statutory law represents the law of the legislature (parliament), and ordinary law (case law) mainly represents the judicial body (judge). The so-called equity is the law applicable when the common law cannot make up for the loss, and the equity is a supplementary rule to the common law.
Application of law
4. Judging from the tradition of application of law, judges in the civil law system first consider the provisions of the statutory law after determining the facts, and attach great importance to the interpretation of the law to ensure the integrity and applicability of the statutory law; judges in the common law system are determining After the facts, the first thing to consider is the case precedents of similar cases in the past. Compare this case with the case precedents to find the legal rules or principles of this case. This method of applying precedents is also called "differentiation technique."
Litigation procedure
5. From the perspective of the tradition of litigation procedures, the two major legal systems also have some traditional differences. For example, the civil law systems tend to be authoritarian, that is, judges play an active role in litigation, and the common law systems tend to be party-based, that is, control. The role of the judge in the confrontational debate between the defense and the defense is negative and neutral.
Vocational education
6. From the perspective of vocational education traditions, the civil law system highlights the legal theory in the professional education of lawyers and judges. Therefore, the civil law system has the title of "jurist law" since ancient Rome; while the vocational education of the common law system Pay attention to the actual ability of handling cases. For example, the vocational education of lawyers is mainly conducted through associations, which is called "teacher-apprentice relationship" education.
The main characteristics of the legal system of the common law system of
thinking and operation
(1) In the way of thinking and operation of law, the Anglo-American legal system uses the distinguishing technique. The model of this method can be summarized as follows: 1. Use the inductive method to summarize the legal facts in the previous example; 2. Use the inductive method to summarize the legal facts in the pending case; 3. Divide the legal facts in the two cases into substance Substantive facts and non-substantive facts; 4. Use the method of comparison to analyze whether the substantive facts in the two cases are the same or similar. 5. Find out the rules or principles contained in the previous example. 6. If the substantive elements in the two cases are the same or similar, according to the principle of following the precedent, the rules or principles contained in the previous case can be applied to the pending case. There are three ways to deal with precedents: 1. Follow the precedent; generally speaking, the lower courts should follow the precedents of the higher courts, and the appellate courts should follow their own previous precedents. 2. Overturn precedents. The Supreme Court of the United States and the Supreme Courts of various states have the right to overturn their previous judgments. 3. Avoid precedents; mainly applicable when lower courts are unwilling to apply a certain precedent but are unwilling to overthrow it publicly. This precedent can be avoided on the grounds that there are differences in substantive facts between the previous and the latter two cases.
The form of law
(2) In the form of law, case law occupies an important position. Traditionally, the case law of the common law system is dominant. However, from the 19th century to the present, its statutory law has also been increasing, but statutory law Still subject to the interpretation of case law. Case law generally refers to the legal principles or rules established in the judgments of the higher courts. This principle or rule has binding force or influence on subsequent judgments. Case law is also statutory law. Because these rules are created by judges when they hear cases, they are also called judge-made law. In addition to case law, there are a certain number of statutory laws in common law countries, as well as some codes. Such as the United States’ Uniform Commercial Code, the U.S. Constitution, etc. However, compared with the civil law system, its statutory laws and codes are still very few, and its impact on the legal system is far less than case law. The relationship between case law and statutory law is an interaction and mutual restriction. The statutory law can change the case law. At the same time, the case law can amend the statute law through the interpretation of the judge during the application process. If this interpretation deviates too much from the legislator’s intention, it will be used The form is changed.
Classification of laws
(3) In terms of classification of laws, the common law system does not have a strict concept of departmental law, that is, there is no systematic and logical legal classification, and their legal classification is more practical. The reasons are as follows: 1. The common law system has attached great importance to the forms of writs and litigation from the beginning. The division of the litigation form itself lacks logic and systemicity, which hinders the classification of laws by British jurists. Scientific research. 2. The Anglo-American legal system emphasizes case law and opposes codification. Case law emphasizes practical experience and ignores abstract generalization and theoretical discussion. 3. The common law system is divided into ordinary courts and equity courts in the setting of courts. From a political point of view, the division of common law and equity is a manifestation of the struggle between Congress and the king for rights, and from a legal and technical point of view, equity versus ordinary To modify and supplement legal defects, equity is based on common law. His explanatory value lies in pointing out the conflicts and contradictions between general justice and individual justice. There is no distinction between ordinary courts and administrative courts. Therefore, there is no clear distinction between cases involving political power and ordinary private cases. This also hinders the classification of laws, especially the difficulty in forming the concepts of public law and private law. 4. In the development of the common law system, judges and lawyers played a major role in promoting. Moreover, their education method is mainly based on apprenticeship, which determines that they are more relevant to specific cases. And underestimate the legal classification in the sense of abstract theory. In addition, as mentioned earlier, the common law system has a long tradition of dividing common law and equity. Although there is no division between common law courts and equity courts, the distinction between common law and equity still remains. Until now.
Legal Education
(4) In terms of legal education, the Anglo-American law system is mainly based in the United States. The legal education is positioned as vocational education. Students have obtained a bachelor's degree before entering the school. The teaching method is case-based teaching, which emphasizes the cultivation of students' practical ability. After graduation, doctors of law (J, D) are awarded, and schools have greater autonomy and are not restricted by educational administrative agencies. In the UK, university law education is somewhat similar to that of civil law, and it also focuses on systematic teaching. However, before graduating from university, you must be trained by a lawyer’s college or lawyers’ association before graduating from a lawyer’s career. At this time, the education is mainly vocational education, and you still receive apprenticeships. The influence of the educational tradition of the system.
Legal profession
(5) In terms of the legal profession. Professional mobility is great. Judges, especially federal court judges, are generally from lawyers. And lawyers are very active politically. The social status of judges and lawyers is also higher than that of civil law systems.
As mentioned in the movie, and as usual, there is no perfection in this world. The jury system gave the wealthy litigation an opportunity. If you have enough strength, 12 jurors can find out their details within five minutes, grasp their weaknesses and hold them. But once things are revealed, they will be severely punished for interference in the judicial system.
In the civil law system, it is a gesture. For example, if there is no legal provision stating that melamine cannot be added to milk, then the addition of melamine is legal, and the prerequisite for illegality is that there must be a law. This system is not controlled by moral goodness, nor does it accept vicious control.
There is also China's legal system, neither of the above two. Because the premise of these two legal systems is judicial independence.
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