UMass Amherst LEGAL 250 - A Primer on the Civil-Law System (4 pages)

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A Primer on the Civil-Law System



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A Primer on the Civil-Law System

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Pages:
4
School:
University of Massachusetts Amherst
Course:
Legal 250 - Intro Legal Studies
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councils of state In Germany and countries that follow its model special administrative courts have been created In theory ordinary court and administrative court jurisdiction is separate and exclusive but disputes arise In France a special Tribunal of Conflicts decides which is the proper court for a disputed case In Germany the court in which the case is filed decides whether it has jurisdiction and may transfer cases over which it declines jurisdiction A decision refusing jurisdiction is binding in the transferee court In other countries such as Italy the Court of Cassation is the final authority on conflicts of jurisdiction Constitutional law poses a special problem for civil law judicial administration The recent adoption of written constitutions for example in Germany and Italy since World War II illustrates the extent to which the public private law dichotomy affects court structure and jurisdiction In those countries some method of reviewing legislative action for constitutionality was necessary yet it was clear that this power could not be exercised by the judiciary i e the ordinary judiciary without violating the doctrine of separation of powers and limiting the supremacy of the legislature Just as the development of the modern administrative state led to the creation of a separate jurisdiction to review the legality of administrative actions in Germany and Italy the solution to the question of judicial review was to establish separate constitutional courts Civil law fundamentalists have occasionally argued that these tribunals cannot really be courts since civil law courts strictly speaking merely interpret and apply the law made by the legislature Nonetheless this view has yielded in the same way that most observers now regard entities such as the French Council of State as a court and its officials as judges Thus the strong principle of separation of powers and the traditional civil law limits on judges powers continue to apply to the work of the ordinary judiciary Conversely the separate administrative and constitutional courts are not thought to violate that principle The Legal Process Civil Procedure Modern codes of civil procedure stress that judicial proceedings are public and controlled by the parties Party control however is somewhat tempered by the extensive power of the civil law judge to supervise and shape the fact finding process and by the role of the public prosecutor in private actions In contrast to the progressive unfolding of evidence under near complete control of the parties that occurs through the discovery process in the American common law system there is no formal civil law counterpart to discovery Nor in most cases is there any single event that the common law lawyer would recognize as a trial Instead a civil law civil action is a continuing 26 A Primer on the Civil Law System series of meetings hearings and written communications through which evidence is introduced and evaluated testimony is taken and motions are made and decided Initial pleadings are quite general and the issues are defined at the direction of the judge as the proceedings progress The civil process tends to be conducted primarily in writing and the concept of a highly concentrated and dramatic trial in the common law sense is not emphasized Thus a lawyer who wishes to question a witness must first submit to the judge and opposing counsel articles of proof describing the scope of the potential questions The witness will be questioned at a later hearing at which the judge will typically ask the questions often framing or reformulating the issues raised in the case Cross examination is uncommon Instead opposing counsel s role is to make certain that the record summary of the testimony is complete and correct The judge supervises the collection of evidence and preparation of a summary of the record on which a decision will be based Since there is no pretrial phase of the proceeding the evidence is not discovered in the sense understood by common law lawyers Instead the parties submit proposed evidence to the judge in writing or at oral hearings and the judge delivers rulings concerning the relevance and admissibility of evidence Admissible evidence is presented for the first and only time in the final hearing that constitutes the trial Many of the differences between the common law and civil law judicial process may be attributed to the absence of the civil jury While some specialized courts involve lay people in the court s decision making process such lay judges are not usually chosen on the basis of their impartiality as are common law jurors Lay judges are generally selected on the basis of experience in the subject matter of the court e g labor law or as representatives of a particular interest group e g unions or management Unlike common law jurors lay judges usually serve for a continuing term instead of only a single case Civil law procedure does not emphasize the need to have a single event trial because there is no need to convene a jury to hear the evidence find the facts and apply the law to the facts The absence of the civil jury also helps to explain the relative lack of restrictions on the admissibility of evi dence in the civil law system Hearsay and opinion evidence is more freely admitted than in commonlaw systems Issues of evidentiary weight are left to the judge Nonetheless there are indications that the common law and civil law procedures are not as different as they appear American pretrial discovery for example significantly reduces the amount of surprise evidence that will come forth at trial And efficiency concerns have led some civil law countries such as Germany to experiment with more concentrated trials to resolve simple cases A central difference between the common law and civil law systems according to The Civil Law System As It Exists and Functions 27 one analysis is that the common law system leaves to partisans the work of gathering and producing the factual material upon which adjudication depends 10 In contrast lawyers in the civil law system mainly act as law adversaries i e arguing points of law and judges more actively control the investigation and fact finding process The public prosecutor may also have a role in a civil case see infra page 31 Criminal Procedure The typical criminal proceeding in a civil law court is divided into three phases the investigative phase the examining phase and the trial In the investigative phase a


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