To give readers a starting point, here are some examples of countries that primarily practice common law or civil law. In civil law countries, judges are often referred to as “investigators”. They usually take the lead in laying charges, establishing facts by questioning witnesses and applying remedies contained in legal texts. The civil law system is a codified legal system. It has its origins in Roman law. The characteristics of a civil law system are as follows: there is usually a written constitution based on specific codes (e.g. Civil Code, company law, administrative law, tax law and constitutional law) that enshrines fundamental rights and obligations; However, administrative law tends to be less codified and administrative judges tend to behave more like common law judges. Legal systems vary considerably from country to country, but they generally follow civil or common law. At common law, precedents or court decisions are used to decide these cases. According to civil law, codified laws and regulations govern the country. Some countries, such as South Africa, use a combination of civil and customary law. The original source of the common law system can be traced back to the English monarchy, which issued formal orders called “writs” when justice had to be done.
Since the documents were not sufficient to cover all situations, courts were eventually created to hear complaints and develop appropriate remedies based on just principles from many authoritative sources (such as Roman law and “natural” law). Through the collection and publication of these decisions, courts have become able to search for previous judgments and apply them to routine cases. And that`s how the common law evolved. These doctrines prohibit or significantly restrict a target company and its subsidiaries from providing guarantees (upstream and downstream) or guarantees in connection with the acquisition of the target`s shares, which is particularly important for PPPs where the private sector participates in a public service (joint venture) and/or privatisations. Other civil law countries such as OHADA countries (Article 639 of the Uniform Law on Commercial Companies) and Algeria (Articles 715 to 60 of the Commercial Code) have similar concepts. For a complete list of common law and civil law countries, see Legal systems of the world on Wikipedia In theory, codes designed in the civil law system should go beyond compiling separate laws and instead entrench the law in a coherent and comprehensive legislative text, sometimes initiating major reforms or starting from scratch. [15] In this respect, civil codes are closer to the Reformulations of the Law, the Uniform Commercial Code (European-inspired) and the Model Penal Code in the United States. In the United States, U.S. states began codifying the New York Field Code of 1850 (which established the rules of civil procedure and was modeled after European and Louisiana codes). [16] Other examples include the California Codes (1872) and Revised Federal Statutes (1874) and the current United States Code (1926), which are closer to statute books than systematic legal records similar to civil law codes.
Another important civil code (BGB), which came into force in the German Reich in 1900. [12] The German Civil Code has a great influence and inspires the Civil Code in countries such as Japan, South Korea and Switzerland. It is divided into five parts:[12] In civil law, the constitution is generally based on one or more codes that apply to specific areas such as taxation, corporate law or administrative law. Several Islamic countries have civil law systems that incorporate elements of Islamic law. [24] For example, the Egyptian Civil Code of 1810, which emerged in the early 19th century, is based on the Egyptian Civil Code. It was developed on the Napoleonic Code – which is still in force in Egypt and is the basis of civil law in many countries in the Arab world where civil law is used – but its main author Abd El-Razzak El-Sanhuri tried to integrate the principles and characteristics of Islamic law to take into account the unique circumstances of Egyptian society. Here are some important differences between common law and civil law jurisdictions. Lawyers still represent the interests of their clients in civil proceedings, but play a less central role. However, as in common law systems, their duties generally include advising clients on legal matters and preparing pleadings for filing with the court.
But the importance of oral arguments, court presentations and active pleading before the courts is less important than a common law system. In addition, non-procedural legal tasks, such as preparing wills and drafting contracts, may be entrusted to quasi-legal professionals who serve businesses and individuals and who cannot have postgraduate legal training or be admitted to court. Unlike common law systems, civil law courts deal with case law independently of precedent. After the American Revolutionary War, one of the first acts of the new government was to fully adopt existing English common law, unless it contradicted the American Constitution. The determination of the common law for a particular case is a process that begins with the analysis of the search, the location of previous relevant cases, the extraction of statements and judgments, and finally determines the applicable common law. Decisions of higher courts adjudicate lower courts and previous cases. Legal laws are already written and should only be applied to a specific case. The 1938 decision was later amended, allowing the federal government to develop a common law based exclusively on federal interests such as war, foreign policy, taxation, etc. The operator is protected in certain circumstances by the right to maintain the “financial equilibrium” of the contract. For example, if the contracting authority imposes a unilateral amendment, it must also adjust the financial terms of the agreement so that the operator is not placed in a worse situation (e.g.
if the contracting authority requires higher service standards, it may also have to allow a higher tariff). Some doctrines that are part of the operator`s right to “financial equilibrium” in France, which have equivalents in other civil law countries, include: Today, the difference between the principles of general law and civil law lies in the very source of law. Common law systems refer extensively to statutes, but court cases are considered the primary source of law, allowing judges to proactively contribute to the rules. For example, the elements required to prove the crime of murder are included in case law and are not defined by law. For consistency, the courts adhere to precedents set by superior courts that consider the same issue. At common law, the judge often acts as an arbitrator because two lawyers represent their side of the story.