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Civil Procedure In Two Legal Systems

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Date added: 17-06-26

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As far as I know, human right starts from his birth, and it never loses until his or her death. However majority people understand law differently but minority think that law is not as important as much during our lifelong. If we look to its history, law is used from ancient times and it has developed year by year. There are as many legal systems as countries in the world. However, There are some differences and similarity between Criminal and Civil law.

1.1 About Law

There are many ideas and theories about law. Law is set of rules which are established by government to maintain stability and justice in society (Brown and Sukys, 2006). Law has relationship with ethics. According to Brown and Sukys (2006), ethics is determining what society's values ought to be. If ethical rules always reached the same ethical result, and if everyone always acted by those results, there would be no need for law (Brown and Sukys, 2006). Law was established in ancient times and developed year by year. Law was developed in Babylonia, Mesopotamia, ancient Greece and Roman Empire, etc (aboutlawschools.org, 2010). Many people contribute for development of law. Greek philosopher Aristotle says that "Law is order, and good law is good order".

2. Main part

2.1 General concept of currently existing systems in the world

Generally, most differentiated legal families are Civil law system, Common law system and Islamic law (religious) law systems. Each of these systems has their own peculiarity. The Civil law or continental law is major system of law in the world. Usually, it is written codes, all rules and regulations are written in advance (New World Encyclopedia, 2010). Furthermore, a civil law system has most Eurasia countries comprising Central Asia, China, Korea, Uzbekistan and Latin America. However, each country has different codes. Connecting to this, judge makes decision bases on written codes. The most essential examples of codes are the Napoleon code, Swiss Code and German code. The history of civil legal system is started from Roman Empire in 449 BC and it developed of Corpus Juris Civilis [1] . This law was created by the decision of Emperor Justinian (527-565). In those times Roman Empire was one of the potent large groups of states or countries statute over by single emperor with several senates. The study of Roman law was conducted in North Italy at Bologna (Encyclopedia.com, 2008). Scholars and judges trained Roman law, these developed rules by them used in national courts to solve legal disputes [2] . Coming 11th century the Common law was developed in England and it is widespread other countries which can speak in English such as USA (except Louisiana), Australia, Canada (except Quebec) and others. Common law system is based on cases rather than written principles and decisions made by judges not by parliament or another organization(Britannica Encyclopedia, 2010).According to Britannica Encyclopedia (2010), common law's precedents is know as stare decisis (Latin: "let the decision stand"). Each people have their interests, feelings and ideas about Common law. For instance, Frederic Mishkin claim that "The common law system in which the law is continually reinterpreted by judges ends up protecting property rights far more than others and makes it easier to enforce restrictive covenants." It means that in common law most decision made by judges. The youngest legal system is Islamic law, differently known as Sharia. Islamic law covers ritual and all aspects of life (Encyclopedia.com, 2008). Sharia is in an Arabic word which means "the way". However it is a legal system which control Muslim life in every part of earth including business and finance, political and social issues on the earth .According to Muslim view that, these laws are an expression of God's will. Sharia is mostly based on two major sources like Koran, which is the saintly book of Islam, contained of the words of Allah; and the Sunnah the set of deeds and words of Prophet Muhammad (peace be upon him). Secondary source of Sharia is consensus of opinions and interpretations of religious scholars (gulf-law.com, 2010). In comparison, in Islamic law judges do not refer to previous cases as in common legal system.

2.2 Criminal procedure in Continental and Common Law Legal Systems

Before knowing criminal procedure we should know what is crime and what does it involve? Crime is an act against public's well being (Brown and Sukys, 2006). I would like to refer Mr. Owens view (2001) who believes that the crime is a legal wrong doing of one or more persons in which he or she liable to be prosecuted and punished by state. According to Brown and Sukys (2006), government or state represents public interest. There are several people involve in criminal trial procedure: judge, plaintiff, public prosecutor, defendant. Each of these words has their definition: Judge- is a person who has right to come to decision legal cases. However plaintiff is the person who makes a formal complaint against somebody in court. Prosecutor is the person who brings case to the court (Owens, 2001). Connecting to this, defendant is prosecuted and if he found "guilty" or "not guilty" [3] . According to Brown and Sukys (2006) "The prosecutor is the government attorney who presents the case in court against the person accused, called the defendant". Criminal procedure involves a set of rules through which a government enforces criminal laws [4] . Common law and civil legal systems vary considerable in criminal procedure [5] . As I mentioned above that civil legal system, is written codes by legal scholars and judges. Judges make decision in criminal procedures according to written rules. The criminal procedure involves government and individuals. Generally, the judge in a civil legal system participate a more actively in determining the facts of the case (experiencefestival.com, 2010). Many civil legal system countries examine main crimes using a so-called inquisitorial system (experiencefestival.com, 2010). In addition, civil law depends much more on written argument than oral argument (experiencefestival.com, 2010). As I wrote earlier common law mainly is based on judge made and previous cases. Criminal procedure in common law also relies on decision made by judge. According to Carnes (2010), in common law prosecutor obliged to seek justice more than advocate the defendant's interest [6] . In addition, Carnes (2010) said that in trials judges are comparatively passive and the act like referee while prosecution and the defense initiate almost all action [7] . If defendant is convicted, the judge will determine the sentence and if defendant behaves well or mitigating circumstances that may lead to lighter sentence [8] .

2.3 Civil procedure in Continental and Common Law Legal Systems

In general, civil procedure is concerned with private relations between members of community (Martin, 2003). For example, when people have arguments about inheritance, they go to civil court. Usually, in civil cases wronged party compensate loss or injury with money or specific action to suffered party (Brown and Sukys, 2006). However, this kind of punishment does not help to protect society [9] . Civil procedure treated differently in common law and continental legal systems. As we know that civil law usually written codes and all rules are written in it, however civil procedure deals with relationship between people. On the other hand, in continental European countries, the usual ground for jurisdiction is the habitual residence of the defendant in the particular state (Shaw, 2003). The civil procedure in common law developed since the sixteenth century and it still developing. Mainly, the issues are discussed within the court. In other world, it has released into written codes of procedure. As Shaw (2003) states that in the common law countries like USA and Great Britain, the civil cases remain service of writ upon the defendant within country and it is usual basis for jurisdiction. According to Uff (2004), civil courts have an inherent jurisdiction to regulate their own procedure in ways which is not covered by statutory rules and it was acknowledged in common law legal system. As stated by Uff (2004), now trial in the most common law systems, one judge decides all issues of law and fact and delivers conclusion of the trial.

2.4 Difference of Criminal and Civil procedure in two legal systems

It is generally agreed today that the Criminal and Civil procedure are different case of law. If we talk about Civil procedural law is generally to be found in rules of court made. According to Shaw (2003), civil procedure has been claimed far wider grounds by the state than has been in criminal cases. Also, Shaw (2003) claims "This is partly due to the fact that public opinion is far more easily roused where a person is tried abroad for criminal offences than if a person is involved in a civil case". The primary difference between Criminal and Civil procedure is the steps which involve in process. The criminal case starts between the government and defendant, while civil procedure begins between two equal parties. The other difference is way of penalizing the accused person in the procedures. The criminal case may end up with punishment such as time in prison, probation or fine (amount of money). But civil procedure defends human rights and applies compensation for the case [10] .

3. Conclusion

All of this point to the conclusion that law has a very wide meaning. It is used in every aspect of our lives. In the modern society, each individual should know about his rights. At the same time, law also requires the specific rules for each kind of behavior and expands to the procedures and the different types of law. In addition, as I mentioned above there are three main legal systems like Common legal system, civil legal system and Islamic (religious) legal systems as the evidence of wide meaning of law.
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