Comparison of Common Law and Civil Law Essay

COMMON LAW(characteristics)for comparing or contrast purpose Common natural justness strategys argon mostly found in former british colony and protectorate including US, it is slight prescriptive than well-mannered law system,citizens ar benefited by enactment and legislation in specialised fields.more often are the implied hurt usage. 1)represents the law of courts as expressed in juridical decision 2)establish on precedents provided by past judicial decisions,no written statues or prescribed texts 3)trial by the jury and the doctrine of the supremacy of the law(origin everyy meant king above law,now mode acts of governmentall agencies are subject to scruting in ordinary legal proceedings) 4)everything is permitted which is not prohibited by law5) covert ,overruling with same court or legislationJudicial precedents derive their force from the doctrine of stare decisionslat= back by the decided matteri.e that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction changing conditions,however soon make most decisions inapplicable except as a basis for analogy, and a court must and then often look to the judicial follow through of the rest of the English speaking world.This gives the system flexibility while general acceptance of cetain authoritative materials provides a degree of stability.Neverthless,in many instances, courts have failed to keep pace with social developments and it has become necessary to enact statues to realize about needed changes.In recent years ,statutes have superseded a good deal of common law,notablyin the fields of commercial administrative and criminal law,typically however in statutory interpretation the courts have recourse to the doctrines of common law.Thus increase legislation is limited but has not ended judicial supremacy. A common law system is generally less prescriptive than a urbane law system. A government may therefore wish to enshrine protection s of its citizens in particular proposition legislation related to the infrastructure program macrocosm contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supplying of bad payers. Please go to Legislation and Regulationsections for more information on this. There are a few(prenominal) provisions implied into a slenderize under the common law system it is therefore important to pitch out ALL the harm governing the birth between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country.CIVIL LAW(CHARACTERISITICS)1)based on statues and prescribed texts.2)available in written form, specific codes screen mostly3)corporate,tax,constitution with staple fibre rights and duties4)only legislative enactments are binding5)precedents are to be followedCountries following a civil law system are typically those that were former French, Dutch, German, Sp anish or Portuguese colonies or protectorates, including much of Central and South America. Also, most of the Central and Eastern European and East Asian countries follow a civil law structure. The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law system include * There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties administrative law is however usually less codified and administrative court settle hunt to behave more like common law judges * Only legislative enactments are considered binding for all.There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions consitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all. * In some civil law systems, e.g., Germany, writings of legal scholars have significant tempt on the courts * Courts specific to the underlying codes there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code * Less freedom of contract many provisions are implied into the contract by law and parties cannot contract out of certain provisions.A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector. Please go to Legislation and Regulation and Organizing Government to think PPP sections for more information on this.There are a number of provisions implied into a contract under the civil law system less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country.It is also important to note in the domain of a function of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them that may not be unsounded or applied in a common law country. Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements.