Differences of Marriage and Family Law between Anglo-American Law System and Continental Law System

Anglo-American legal system and continental legal system are two major legal systems in the contemporary world.

These two legal systems involve history, culture, belief and social background, and are quite different in essence and concept.

Civil law, also known as continental law, Roman law and civil law.

Civil law system and Roman law are in the same strain in spirit. /kloc-In the 20th century, Justinian's Complete Works of National Law was rediscovered in Italy. Because its legal system was more complete than the customary law of European feudal countries at that time, Roman law was imitated one after another in continental Europe, which was called "the revival of Roman law" in history. After the gradual integration with Christian civilization and commercial civilization, the embryonic form of today's civil law system was formed. This is the origin of the civil law system, so it is also called the Roman law system.

Today, Justinian's Complete Works of State Law basically belongs to civil law, so the civil law system as the direct successor of Roman law is based on civil law. The distinction between "public law" and "private law" is extremely clear, and there are binding provisions on individual rights and public rights. Compared with another legal system, the Anglo-American legal system has a systematic continental legal system, so the continental legal system is also called the continental legal system.

The civil law system follows the Roman law, has a long tradition of codification, attaches importance to the compilation of the code, has detailed written laws, and emphasizes that the code must be complete, so that every detail of every legal category is clearly stipulated in the code. The continental law system advocates logical reasoning in jurisprudence, and conducts judicial trials on this basis, requiring judges to conduct trials in strict accordance with the law.

At present, China's legal system is mainly based on German and belongs to the mainland system. Looking at our legal system, we can know a little about many characteristics of the mainland system. In civil law countries, the symbol of legal progress and perfection is the introduction and implementation of new laws. For example, China's property law and other laws have been promulgated in recent years.

Because the European legal system is systematic and conceptual in form, it is easy to imitate and transplant, so it is easy to be imitated by backward countries such as China and Japan.

Common law is also called common law system and maritime law department.

Anglo-American legal system originated in medieval England, mainly from the integration of Anglo-Saxon customary law and Norman feudal law. After the Normandy conquest, Duke William set foot on the land of England. In order to expand the royal power, he sent judges to all parts of England to deal with the contradiction between farmers and feudal lords. In the process of handling, there have been many problems that cannot be followed by written laws. The judgment was based on the customs and habits at that time, and Christian morality also had a great influence on the trial results. This is the origin of the Anglo-American legal system today. With the expansion of the British Empire in 17 and 18 centuries, it spread all over the world, and now it is mainly popular in Commonwealth countries.

Anglo-American legal system is also called unwritten law system because of its origin. Compared with the civil law system, the Anglo-American law system "follows precedent" in the principle of judicial trial, that is, precedent is legally binding on subsequent cases and becomes the basic principle for judges to try in the future. However, this kind of case law, which expresses legal norms in the form of case law, is not recognized by countries that implement civil law system, and only has auxiliary reference value at most. It seems that laws are gradually accumulated without going through the legislature.

Anglo-American law is case law, not statute law. On the basis of local customary law, judges sum up and form a set of legal system suitable for the whole society, which has the characteristics of adaptability and openness. In the trial, more attention is paid to the adoption of adversary system and jury system. The lower court must follow the precedent of the higher court. The precedents of judges at the same level are not necessarily binding, but they generally refer to each other.

In countries with common law system, the development of legal system and theory essentially depends on the promotion of individual cases. Therefore, when we look at the judgments of Britain and the United States, the game between judges, juries and lawyers is extremely exciting, and often after an unprecedented judgment, it provides a basis for the judgment of the same situation in future generations. For example, when we look at the development of American legal system, we often see landmark cases.

Take chestnuts for example. For example, the famous case of "Brown v. Topeka Education Bureau" in the United States, from the local court to the Supreme Court, finally ruled that the apartheid policy in southern provinces was unconstitutional. From now on, all judgments of similar cases of racial discrimination and apartheid must follow the judgment of the High Court on this case. So the policies of apartheid in southern provinces finally became history, and the United States ushered in the great victory of the civil rights movement in history.

As the two most important legal systems in the world today, the civil law system and the common law system are not antagonistic, and there are many exchanges and integrations now. The countries marked in gray in the above picture adopt mixed legal system. Case law also has reference value in some civil law countries, and countries with maritime law departments like the United States have begun to actively compile codes to cooperate with them, instead of relying solely on precedents to formulate laws. This trend is becoming more and more common all over the world.

For example:

Marriage and family law in civil codes of civil law countries.

(1) 1804 The normative system of marriage and family law in the French civil code plays an important role in the history of marriage and family legislation in the world, which declares the victory of capitalist marriage and family system over feudal marriage and family system in the form of law.

(2) In 804, the French Civil Code generally denied the feudal family-based marriage and family system and replaced it with the capitalist individual-based marriage and family system.

(3) The French Civil Code 1804, as a whole, is based on the legal principles of equality of civil rights and freedom of contract. In carrying out these principles, the provisions of marriage and family law are far less than those of property law. In many clauses, traces of the old times can be seen everywhere.

(4) The Family Code of German Civil Code, which was adopted in1896 and implemented in l900, is also a representative marriage and family legislation in civil law countries. It is the product of the transition from the era of free capitalism to the era of imperialism.

The first difference between the common law system and the civil law system is whether there is a written law. There is no so-called marriage and family law in common law system. They solve practical cases through precedents.