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Forum LockedJustice and Hammurabi's Code

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Sparten View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 06:42
Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
 
Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law" and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 15:15
 
 
Originally posted by Sparten Sparten wrote:

Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
A criminal prosecution is never a civil action, even if it is a private prosecution (which in England requires to consent of the government anyway as you note below). For instance even in a private prosecution the burden of proof is 'beyond reasonable doubt', not on the balance of probability as it is in a civil action.
 
But as I said I'm only talking about the law in England and Wales.
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Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law"
I didn't get confused. I quite clearly said I was talking about English law, and under English law 'civil law' refers to actions brought by one party (other than the sovereign) against another (other than the sovereign) with the court adjudicating between them. In criminal law, the Queen (State or US in the US) brings the action against a defendant, who is accused of having broken the law, and threatened with being punished for it.
 
In civil law (given that in the US in particular the terms are often misused) you don't have a prosecutor and a defendant, you have a plaintiff and a respondent. And no-one is being accused of breaking the law: the respondent is being accused of having wronged the plaintiff in some way, and being asked to make compensation.
 
What you wrote was "I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law." I hadn't mistaken anything. I hadn't said anything about anything except English law.
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and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 15:43
Originally posted by Sparten Sparten wrote:

Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
 
Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law" and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
 
Sparten, I'm a lawyer trained in the Continental/Civil law system I also have a law degree from the US, so I'm familiar with the basics and terminology of the both systems and I'm not really a layman in the realm of law Wink
 
I understand what you are talking about, but I still think gcle2003 was correct in what he said.
 
One point I want to add however. In the Continental or Civil law system if you will, the distinction between public and private law is made not really based on the parties, but based on so-called concept of legal relationship. When the parties are free to draw the rules by themselves without following mandatory regulations (as for example in sale contract), this is called a private relationship (law), even though one party to the contract could be a government body acting in its official capacity. However, when the rules of the relationship are mandatory and can't be changed (as for a example in Criminal or Administrative law where one must comply with the rules established by the state) it's called public law or jus publicum. This concept is inherently continental and comes from Roman law, I don't think Common law has it.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 16:20
Sarmat12,
I definatly thought you were familiar with the subject matter.
 
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 16:30
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 20:06
It occurs to me that here and in France reference is usually (it seems) to the Code Civile, rather than to the Loi Civil. I'm kind of used therefore to thinking of continental (etc) sytems as 'Civil code systems'.
 
If I remember correctly, in English universities wasn't it taught as 'Romano-Dutch Law'? (Not that I read law.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 20:58
It is called Droit Civil in France. Code Civil is just the most important Loi Civil and the major source of Droit Civil.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 31-Jan-2008 at 10:09
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