Civil Law and Common Law Systems PDF

PART II (EXTENDED) : CIVIL LAW AND COMMON LAW SYSTEMS never stop daring. 2 CIVIL LAW AND COMMON LAW SYSTEMS Overview of the legal systems around the world Two major legal systems exist in the world 1. Civil law system...

PART II (EXTENDED) : CIVIL LAW AND COMMON LAW SYSTEMS never stop daring. 2 CIVIL LAW AND COMMON LAW SYSTEMS Overview of the legal systems around the world Two major legal systems exist in the world 1. Civil law system (most common) 2. Common law system There exists other systems including: 1. Customary law 2. Religious law 3. Special and mixed systems a. Civil + Common b. Civil + Religious c. Common + Religious  CIVIL LAW AND COMMON LAW SYSTEMS Civil law vs Common law Main differences: COMMON LAW CIVIL LAW Judicial precedent- Code-based system based system (codified sources of (interpretation of law) judges in past cases from higher courts) CIVIL LAW AND COMMON LAW SYSTEMS Influence of civil law and common law systems on the roles of lawyers and judges Role of the lawyer Civil law : advise clients, prepare pleadings, but less active in the courtroom Common law : examine witnesses themselves, take a more prominent role in the trial Role of the judge Civil law : investigators – take the lead in the proceedings and seek to establish facts and truth Common law : referees – arbitrate which side has the best arguments, the best legal sources, and take into account equity TEST YOURSELF #6 True / False True False In common law systems, judges are deemed to be investigators, unlike in civil law systems where they are seen as referees In common law systems, lawyers take on a very active role in the trial Common law is seen as a more flexible system than civil law Civil law is the predominant legal system around the world Common law judges are bound to follow past judicial decisions (coming from higher courts) regarding the application and interpretion of a rule of law Common law is different from civil law in that it uses codified law as its main source of law CIVIL LAW AND COMMON LAW SYSTEMS Recent news regarding the differences between civil and common law systems What happened in the US (over a year ago) regarding the 1973 judicial precedent Roe v. Wade ? Who issued that decision? What are the consequences of that decision ? Would a similar result be possible in France (or any civil law country)? Why or why not ? 8 PART III : WHAT IS CONFLICT RESOLUTION? never stop daring. 11 WHAT IS CONFLICT RESOLUTION ? A conflict/dispute may be resolved : 1. Amicably, between the parties; 2. Amicably, with the help of a third party, a mediator or conciliator; 3. Before a judge in a court of law 4. Before an arbitrator in an arbitral tribunal WHAT IS CONFLICT RESOLUTION ? Amicable conflict resolution without a third party Transaction : Contrat containing reciprocal compromises (a crucial condition that will be verified by a judge if the transaction were to be contested by one of the parties) which is binding on the parties : Neither party is allowed to disregard the terms of the agreement of the transaction, and Neither party is allowed to ask a court of law to resolve the initial conflict, which has been resolved by the signing of the transaction Compromise Agreement Compromise End to the dispute/conflict WHAT IS CONFLICT RESOLUTION ? Amicable conflict resolution with a third party: conciliation and mediation CONTRACTUAL CONCILIATION CONTRACTUAL MEDIATION CONSUMER LAW MEDIATION Any conflict Any conflict Conflicts between a consumer and a professional Conciliator aims at bringing the Mediator proposes a solution to Mediator proposes a solution to parties amicably to an agreement the parties the parties Free procedure Paying procedure Free procedure for the consumer, and confidential TEST YOURSELF #7 True /False True It depends False Mediation is free Conciliation is more like a transaction than mediation Consumer law mediation must always be offered to the consumer A consumer must always go through consumer law mediation when in conflict with a professional Mediation has a wider field of application than conciliation