The majority of legal systems from around the world can be classified as either a common law system or a civil law system, although the existence of religious and customary systems must be noted. 尽管对这种分类有一些批评, the division is still a useful one due to the notable differences between the two systems. Increased globalisation and the existence of hybrid legal systems, 比如在魁北克或苏格兰发现的那些, along with and the sharing of legal ideas and principles between legal systems show that the classic division between common law and civil law is not as clear as it once was.
普通法
“After all that is the beauty of the common law; it is a maze not a motorway”
莫里斯诉C.W. 马丁 & [1965] [j].R. 725
虽然很难简洁地定义, the common law is summarised perfectly by this statement from Lord Diplock. It is a legal system in which statutory legislation begins as the starting point for a law. This legislation is supplemented and transformed over time by subsequent case law, 被称为先例, 这通常适用于非常具体的情况. This dynamic element of precedent enables the common law to easily adapt and change to new situations as, 例如, society or technology evolves without the need for intervention from the legislator which can take a substantial length of time.
民法
民法 is a legal system that is largely developed from Roman Law with the most distinctive feature of a civil law system being legal codes. These are large texts that are very general and applicable to many situations with the most famous example being the Napoleonic Civil Code of 1804.
It must be noted however that although codification is a key feature of civil law, 它并非在所有大陆法系都普遍存在. It has been argued that this codification is what helps enable civil law systems to be more accessible to the general public.
司法机构的角色
In common law systems the judge has emerged as an entity that has the power to create law. Despite the role of the judge differing heavily within common law systems, the power of the judiciary remains a standout feature of common legal systems.
在美国, 例如, the Supreme Court can declare legislation not to be valid law if it is deemed to be unconstitutional. 然而在英国, the Supreme Court can only declare legislation to be incompatible with the Human Rights Act 1998 which does not affect the validity of the legislation itself.
与普通法系相比, the role of the judge is largely diminished with greater emphasis being placed on the codified law. The preconception that the judge is redundant in civil law systems is not true as, 比如在法国, 的“法学” 最高法院 在随后的裁决中必须遵循吗.
诉诸司法
English common law arguably cannot be considered to be an accessible legal system. 普通法根植于精英主义, it is often hard for the layperson to understand both legislation and precedent due to the complicated legal language used.
除此之外，甚至诉诸法律都非常困难. On the UK government website large amounts of legislation remain to be updated. Accessing the case law is also difficult as the government itself does not provide publication of law reports. 尽管案件数据库是由慈善机构BAILII提供的, it is significantly inferior compared to the private providers and the public are at a significant disadvantage.
相比之下，民法要容易得多. The French government website provides a comprehensive database of the codes that are written in a style that is easier to understand, also ensuring there is a greater transparency of the judicial process.
最佳法则?
It is unlikely that any legal system in any country could be considered to be perfect, there will always be flaws and improvements that can be made to it. Through the increased globalisation during the twentieth century and the sharing of legal ideas, legal systems from different countries are cooperating in order to try and achieve the best law possible.
在英语的情况下 怀特诉琼斯案 ([1995]李建平.R. 691大陆法系国家的推理, 特别是德国, was used in order to influence the judgement on professional negligence. Furthermore the growth of international organisations has seen the conclusion of conventions, 例如《十大菠菜台子》(Vienna Convention on Contracts for the International Sale of Goods 1980), which aim to eliminate differences between the common and civil legal systems in an attempt to harmonise the law.
The fluidity and adaptability of the common law is one of its greatest strengths however due to its complex nature it is often difficult to understand. Conversely the accessibility of civil law systems place great emphasis on the law being open to everyone, 有非常广泛适用的法律. Neither system is without its flaws and elements can be selected from both systems in order to achieve the best possible law.
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本文仅供参考之用. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, 根据你自己的情况提供个性化咨询. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
信息由ALARIS AVOCATS提供, English speaking 律师 in France (Paris) specialized in French labor law, 尤其是各种社会计划, 解雇程序及劳动合同条款.