Standard Of Proof Common Civil Law Comparative Perspective Law Essay

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In both legal systems, common law and civil law, criminal and civil matters are the majority of issues occurring in legal proceeding. Criminal matters are legal affiliation between governments and citizens in which governments take a superior position. “Criminal process, typically although not exclusively, is initiated by the government or an agency of government, and is directed towards the punishment of an individual who is alleged to have contravened a rule of conduct for which such punishment has been made the sanction”. [1] In contrast, civil matters concern legal relationship among citizens with in which every party has an equal position. Civil matters are related to protection of personal rights considering loss of the breach of private obligations. [2] Consequently, this broad distinction influences any processes during examination in courts, particularly in the standards of proof, in both common law and civil law systems. [3] The scope of this essay focuses on the proof process in courts. This essay will initially explain the differences between common law and civil law. Then, it will compare the standard of proof in both criminal and civil matters in common law jurisdiction. Next, it will also contrast the differences between standard of proof in both criminal and civil matters in Indonesia as a civil law country. In this context, common law refers to a legal system which comes from the English legal system, whereas civil law refers to a legal system which comes from the European continental system or Roman law and the Germanic tradition. [4] It can be seen that both system are “products of western civilization”. [5] There are three main differences in the characteristics of common law and civil law, namely applying and interpreting the law stated in a statute to cases, the roles of jury and judges, and the binding force of precedents. [6] In the common law system, laws are usually created by judicial decision, and thus law contained in code is a secondary resource. [7] On the contrary, in civil law, “courts should be denied any interpretative function and should be required to refer problems of statutory interpretation to the legislature itself for solution”. [8] This difference is affected because of the difference of role of legislator. In common law, the legislator provides the main task of courts to create law, while in civil law courts should apply the law which is created by the legislator. [9] The role of jury has significant influence in courts in common law tradition. [10] The jury is representative of citizens to establish decision. On the other hand, in civil law tradition, judges decide cases based on the evidence in examination process. Jury is unknown in civil law tradition. [11] After examining evidence and witnesses, and hearing indictment and pleading, judges discuss and then formulate verdict of a case. Therefore, in civil law courts, judges’ roles include leading trial process, examining evidence and witnesses, and create a verdict. Courts’ decisions should be similar to previous decisions. This is a consequence of the doctrine of precedents in the common law system.

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