Differences between Chinese and Western Legal Traditions

Continental law system and Anglo-American law system are two major legal systems in the world today, covering some major countries in the world. The representatives of civil law system are German, French and China. Anglo-American legal system is of course represented by Britain and America. The comparison of differences between civil law system and common law system has always been a hot topic for comparative jurists. There are great differences between the two legal systems in many aspects, and I only compare them from the aspects of litigation procedures.

For a long time, comparative jurists tend to assume that similar needs are always met in a similar way in all developed legal systems in the world. [1] However, the huge differences in litigation procedures between civil law system and common law system break this assumption. Such as the preparation and conduct of summary civil litigation, the way to state the facts to the court, the way to choose or ask witnesses or experts, etc. , all make this assumption untenable. There are so many differences between the two legal systems, which are influenced by many reasons, such as regional differences, national habits, cultural characteristics, historical traditions and so on. But I think the main reason is the influence of ideology and cultural tradition. The thinking habits of the two legal systems are different in many aspects, which has created great differences between the two legal systems.

As a matter of fact, many characteristics of the proceedings in the Anglo-American legal system are caused by a decisive fact, that is, the proceedings originated from the jury system. Nowadays, it is generally believed that the jury system is only used in criminal cases in Britain, and only when the defendant claims that he is "innocent" in a serious crime. [2] Nevertheless, the tradition of jury system still permeates the civil litigation in Britain. The influence of the jury system has led to many specific proceedings in civil and criminal trials. [3] This also makes its litigation procedure different from that of civil law countries.

In the civil law system, litigation can be divided into multiple trials at intervals. Therefore, for the unexpected opinions or evidence put forward by one party in court, the other party can have enough time to present further evidence to refute it in the next trial. However, in the common law system, it is quite different. Because it is a one-time trial, in order to prevent the same thing from happening, lawyers should not only think clearly about their own arguments and evidence, but also understand the arguments and evidence of the other side. Because in the trials of common law countries, if unexpected evidence appears, neither party can easily ask for an adjournment. This makes it necessary for the lawyer to meet his witnesses before the trial to know what they will say and do in court. For this kind of behavior, German lawyers think it is against professional ethics. [4] It is not difficult to imagine why lawsuits in common law countries often have unexpected results, and why lawyers who can make love in court are always respected. However, the trial in civil law countries always gives people a step-by-step feeling, which is not exciting enough, so it is difficult for lawyers to have a very exciting performance.

Since common law countries adopt the mode of one-time trial, what is the role of judges? Before the trial began, the lawyers made careful preparations, but the judge was extremely unclear about the controversial issues and related evidence. It is believed that judges rely on lawyers to provide all the necessary facts and laws through oral statements. [5] As we all know, in the courts of common law countries, lawyers independently decide which witnesses to call and ask. Every witness was questioned by one party and then by the other. Questioning witnesses is also the embodiment of lawyers' wisdom. Good lawyers can often make the testimony of opposing witnesses unreliable and unacceptable to judges or juries, thus losing the effectiveness of evidence.

Lawyers question witnesses, and judges generally only pay attention to the testimony of witnesses. When a judge speaks, it is usually only a judgmental statement such as "valid objection" or "invalid objection" to decide whether the questions of the parties can be adopted. Judges in common law countries can ask witnesses, but in order to avoid being involved in conflicts and remain neutral, they often ask fewer questions. There was a case that explained the wisdom of the judge from the opposite side, that is, "Jones v. National Coal Commission": the judge asked too many questions in the first instance of the case, which led to both parties being unable to present evidence in the best way they thought, and the Court of Appeal only sent the case back to the lower court for retrial on this basis. [6] This case also illustrates the principle of "procedure is superior to rights" in the common law system.

Judges in Britain and America are passive everywhere in the trial. They knew nothing about the case at the beginning and had to know it during the trial, so the parties and their lawyers must play a major role. This is mainly because, in common law countries, it is generally believed that the best way to get the real situation in court trial is to let the parties debate the real situation, and the judge only acts as the supervisor of court rules, that is, "confrontational" litigation. But in civil law countries, the situation is just the opposite. They believe that if judges can play a greater role, it may be more conducive to discovering the real situation. Therefore, the judge has the obligation to ask questions, inform, encourage and persuade the parties, lawyers and witnesses, so as to obtain all the true information from them and avoid the parties losing the case. Civil trials in civil law countries still have some "inquisitive" nature and some bureaucratic characteristics. [7] The court is the main body of litigation and evidence investigation, and the judge presides over the court trial as an active judge. In the United States, the litigation procedure of "adversary system" is very strict. This is mainly because, as long as it is a common law request rather than an equitable request, there is still a jury in the trial stage of civil litigation.

L junction

Continental law system mainly inherits Roman law, while Anglo-American law system does not. The difference between them is enormous. For example, continental law is mainly written law, while Anglo-American law is case law. The comparison of the litigation procedures selected in this paper is only the difference in the specific judicial system between the civil law system and the common law system. It is very meaningful to study the differences between different legal systems, which can make us learn from each other's strong points and absorb the good ones from other legal systems to improve our legal system, which will have a far-reaching impact.

At present, China's socialist legal system construction is in an intensive stage. It is also of practical significance to enrich and improve China's legal system based on the written law of civil law system and drawing lessons from the case law system of common law countries. In the process of socialist market economy, we will inevitably encounter all kinds of new situations and problems, which requires us to look at the world and boldly absorb and learn from the essence of foreign legal systems.

Differences between civil law system and common law system

Generally speaking, different standards will produce different results. There are obvious differences between the civil law system and the common law system in four aspects: judicial organs, trial basis, litigation procedure and court organization, which are briefly described as follows: (1) Judicial organs: Generally speaking, for civil law countries, administrative cases are not under the jurisdiction of ordinary courts, but administrative courts are set up to accept them, so the civil law system belongs to administrative courts and ordinary courts. In principle, there is no administrative court in the common law system, and criminal and administrative proceedings are under the jurisdiction of ordinary courts, so there is no separate administrative court. (2) Trial basis: Generally speaking, for countries with civil law system, statutory law is the main one, supplemented by customary law and case law; In the Anglo-American legal system, apart from the Constitution, other so-called laws in the United States attach importance to unwritten law, so they mainly implement customary law and precedent. (3) the way of litigation procedure: usually, for countries with civil law system, a stereotyped judicial organ is usually implemented; Common law system usually adopts jury system and circuit trial system. (4) Court organization: Generally speaking, for civil law countries, the collegiate system is usually implemented, so there are more judges; The common law system usually adopts exclusive system, so the number of judges is small. Three. To sum up, we can discuss the differences between civil law system and common law system from the aspects of judicial organs, trial basis, litigation procedure and court organization. A basic understanding of the legal system is helpful for us to enter the legal palace and understand the overall legal system and structure, so as to build a society in which all people understand the law.