common law and civil law

Legal System： Common Law and Civil Law

Every independent country has its own legal system. The systems vary according to

each country’s social tradition and form of government. But most systems can be

classed as either a common-law system or a civil-law system. The united states,

Canada, great Britain, and other, English-speaking countries have a common-law

system. Most other countries have a civil-law system. Many countries combine

features of both systems. A general distinction can be made between civil law

jurisdictions

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, which codify their laws, and common law systems, where judge made

law is not consolidated.

1. Common-law system

The common-law system prevail in England, the united states, and other countries

colonized by England. It is distinct from civil-law system, which predominates in

Europe and in areas colonized by France and Spain. The common-law system is used

in all the states of the United States except Louisiana, where French civil law

combined with English Criminal Law to form a hybrid system. The common-law

system is also used in Canada, except in the province of Quebec, where the French

civil-law system prevails.

Anglo-American common law evolved chiefly from three English crown courts of the

12 and 13 centuries: the Exchequer

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, the King’s Bench

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, and the Common Pleas

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.

These courts eventually assumed jurisdiction over disputes previously decided by

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Jurisdiction :该术语具有“管辖区域、范围”或者“司法管辖权”的意思，在此处是指管辖的区域、范围。

the Exchequer：（英）理财法院；财政诉讼法院。原位征服者威廉时期王廷（aula regia）的一个部门，属

存卷法院（court of record）。其职责是处理有关应向国王政府缴付款项的纠纷。当时这一部门兼理财及司法。

到13世纪末其司法的职责逐渐脱离行政职能，形成理财法院。

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the King’s Bench：王座法院。 The King’s Bench (or during the reign of a female monarch, the Queen’s Bench) is

the superior court in a number of jurisdictions within some of the commonwealth realms. The original Queen’S

Bench, founded in 1215 in the United Kingdom, is one of the ancient courts of England, and is now a division of

the high court of justice of England and Wales.

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the Common Pleas: 皇家民事法院；普通民事诉讼法院。the Common Pleas made a distinction between

common and special bail, allowing the former, in cases where the defendant voluntarily appeared to the process,

or where the damage express in it appeared to be but of a trifling amount, and requiring the latter only, when the

plaintiff’s demand or the damage he had sustained appeared to be something considerable.

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local or manorial courts

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, such as baronial

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, admiral’s (maritime)

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, guild

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, and forest

courts

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, whose jurisdiction way limited to specific geographic or subject matter areas.

Equity courts, which were instituted to provide relief to litigant in cases where

common-law relief way unavailable, also merged with common law courts. This

consolidation of jurisdiction over most legal disputes into several courts was the

framework for the modern Anglo-American judicial system.

Common-law courts base their decisions on prior judicial pronouncements rather than

on legislative enactments. Common-law judges rely on predecessors’ decisions of

actual controversies, rather than on abstract code or texts, to guide them to applying

the law. Common-law judges find the grounds for their decisions in law report,

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which contain decisions of past controversies. Under the doctrine of stare decisis,

common-law judges are obliged to adhere to previously decided cases, precedents,

where the facts are substantially the same. A court’s decision is binding authority for

similar cases decided by the same court or by lower courts within the same

jurisdiction. The decision is not binding on courts of higher rank within that

jurisdiction or courts in other jurisdictions, but it may be considered as persuasive

authority.

Under a common-law system, disputes are settled through an adversarial exchange of

arguments and evidence. Both parties present their cases before a neutral fact finder,

either a judge or a jury. The judge or jury evaluates the evidence, applies the

appropriate law to the facts, and renders a judgement in favor of one of the parties.

Following the decision, either party may appeal the decision to a higher court.

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Manorial courts: （英格兰古法）领地法院，设在领地内的法院，设立租户诉讼案件。

Baronial courts: 男爵法院，亦作court baron, 是领地法院的一种。

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Admiral’s courts: 海事法庭。

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Guild: 同业公会，行会，基尔特。一种为公共目的，相互援助而资源组建的协会、行会或同业公会。

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Forest courts: 王室猎场法院。为管理王国各地的王室猎场而设立的法院，以对破坏王室猎物、伤害猎场

中的鹿以及其他猎物的行为予以处罚。王室猎场于1688年废止。

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law report: 判例汇编。汇编人（reporter）对级别较高的法院审理中的司法程序、案件事实陈述、当事人

辩论以及法院判决及理由等予以记录之出版物。

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Appellate courts in a common-law system may review only findings of law

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, not

determinations of fact

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.

The lawmaking role of legislatures in common law countries has increased greatly

during the 1900’s. For example, the United States congress has made major changes

in American contract and property law. The changes have dealt, for example, with

such matter as labor-management relations

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, workers’ wages and hours, health, safety,

and environmental protection. Nevertheless, common-law countries have kept the

basic feature of the English legal system, which is the power of judges to make laws.

In addition, constitutional law

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in these countries continues the common-law

tradition of defending the people’s rights and liberties.

2. Civil-law system

Civil-law systems are based mainly on statutes

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. The majority of civil-law countries

have assembled their statutes into one or more carefully organized collections called

codes.

Most modern law codes can be traced back to the famous code that was

commissioned by the Roman Emperor Justinian I

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in the A.D. 500’s. Justinian’s code

updated and summarized the whole Roman law, which was called the Corpus Juris

Civilis

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, meaning body of civil law. For this reason, legal systems that are based on

the Roman system of statute and code law are known as civil-law system. This use of

term civil law should not be confused with its use as an alternate term for private law.

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findings of law: 对适用法律的裁决。对某种事件的法律后果的裁决。

determinations of fact: 对争议事实的裁决。

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labor-management relations：劳资关系。

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constitutional law：宪法。在此处“constitutional law”指作为一个部门法的宪法；而constitution指特点

的成文宪法。宪法可以分为成文宪法和不成文宪法。成文宪法形成统一的书面法律文件，又称刚性宪法，

其制定和修改均通过特别程序，不能以一般立法方式变更，如美国宪法，但也得以法院的解释、惯例等为

补充。不成文宪法散见于各制定法、法院的解释、习俗和惯例之中，又称柔性宪法，如英国宪法。柔性宪

法无单独宪法文本，其修订和一般法律的修订程序相同。

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Statute：制定法。 A law passed by a legislature.

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Roman Emperor Justinian I: 罗马皇帝优士丁尼一世。

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Corpus Juris Civilis: 《优士丁尼民法大全》或《国法大全》，或《罗马法大全》。包括四个部分：Justinian

Code《优士丁尼法典》

，

Institute《法学阶梯》

，

The Digest《学说汇纂》

，

New Law《新律》

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Civil-law system includes both private law and public law.

The monumental Corpus Juris Civilis commissioned by Justinian still influences the

evolution of law in virtually every civil law country. The root of civil law are so

deeply imbedded in French jurisprudence that French universities did not even teach

common law until 1689. It affects legal rules, legal thoughts, legal classifications, the

treatment of legal precedents and techniques, and the organization of court system.

One interesting aspect of civil law is that it transfers from place to place more easily

than common law. It is sometimes said that there are two branches of civil law:

French and German. The civil codes of both countries have proven particularly

adaptable. For example, the French Civil Code (or Napoleonic Code)

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, first

promulgated by napoleon I in 1804，is the basis of the laws of Belgium, the

Netherland, Luxembourg, and parts of Germany, Switzerland, and Italy. Spain,

Romania, and parts of Africa and South American also borrowed the code civil as a

guide for local civil codes. In North American, for example, the civil laws of both the

state of Louisiana and the Canadian province of Quebec are rooted in the Code Civil.

Inherited from the Holy Roman Empire, the German Civil Code, which was enacted

in 1900, also reveals the strong influence Roman civil law. Although its reach has

been much narrower than that of the French code civil, it has been important in such

far-reaching sites as Thailand, China, Japan, Eastern Europe, and Greece.

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French Civil Code (or Napoleonic Code)：《法国民法典》，或称为《拿破仑法典》。《拿破仑法典》是一个非

正式用语，指在拿破仑时代由拿破仑提议通过的诸法典的总称。

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