(2) the difference of codification: the civil law system generally adopts the form of code; Common law system is usually a separate law and regulation.
(3) There are differences in the technology of applying the law: in the civil law system, when trying a case, the judge first considers how the written law is stipulated, and then makes a judgment according to the relevant provisions and the case situation; Judges in the common law system first consider similar cases before, compare the facts of this case with previous cases, and summarize the legal rules that can be applied to this case.
(4) The classification of laws is different: the basic classification of civil law system is public law and private law; The basic classification of Anglo-American legal system is common law and equity.
(5) The litigation procedure is different from the judgment procedure: the civil law system generally adopts the trial method, takes the judge as the center and pursues interventionism; Anglo-American legal system adopts adversary system and litigiousism, and judges play a passive and neutral role.
(6) There are many differences in legal terms and concepts.
1, common law system:
First, the concept of Anglo-American legal system
Anglo-American legal system, also known as common law system, refers to the legal system developed on the basis of English law since the Middle Ages, especially its common law. Common law is a concept corresponding to equity, church law, customary law and statute law. Because the common law has the greatest influence on the whole legal system, the common law system is also called the common law system. American law originated from British tradition, but it has developed independently since the late19th century, which has exerted great influence on world law. The distribution of common law system mainly includes Britain (except Scotland), the United States (except Louisiana), Canada (except Quebec), Australia, New Zealand, India, Pakistan, Singapore, South Africa and China. The spread of English legal tradition was mainly achieved through colonial expansion.
Second, the evolution of Anglo-American legal system
(A) the historical evolution of British law
1, the formation of common law
(1) Anglo-Saxon law: Britain was controlled by Anglo-Saxons from the 5th century to 1066. Most of the laws implemented at that time were customary laws, which had little influence on English law.
(2) The origin of common law: 1066 After the Duke of Norman conquered England, in order to consolidate his rule, he implemented the system of land enfeoffment and centralization. Among them, the command meeting is an important institution of centralized rule. This institution is a deliberative body attended by the king's cronies, bishops and nobles. It mainly assists the king in handling legislative, administrative and judicial affairs. Later, the institutions dealing with judicial affairs gradually became independent. By the time we arrived in Henry III, the Senate had established three royal high courts, namely, the Financial Court, the General Litigation Court and the Throne Court, to handle major cases directly related to the interests of the royal family. Because the Normans didn't have their own laws before, their laws were formed through the judgments of these courts, that is, case law. These judgments are binding on the judgments of the local courts. With the expansion of the jurisdiction and influence of the royal court. Its precedent has had a great influence on the laws of the whole country. The case law of the Royal Court is the common law applicable to England. Mainly for the common law in various places. In the time after the appearance of the royal court, there appeared a situation in which the royal court coexisted with local courts and church courts. Local courts (including county courts and Baihu courts) mainly apply customary law, while church courts mainly apply church law, which mainly governs marriage, family, inheritance and adultery. The conflict between the three is inevitable. The royal court expanded its influence by issuing an order to start litigation. The so-called litigation commencement order means that the plaintiff can ask the king to uphold justice and then issue a writ through the minister of the king of England. The content of the writ is to ask the county sheriff to order the defendant to meet the plaintiff's requirements or to be tried in the royal court.
2. The rise of equity.
The fundamental reason for the rise of equity is that the writ system and mechanical litigation procedures of ordinary courts are increasingly unsuitable for the needs of reality, especially the development of capitalist relations of production. Many people seek justice from the Privy Council and Congress. These disputes are handled by the Privy Council Minister in charge of judicial affairs. 1474, the Privy Council Minister made the first judgment with his own honor. With the increase of cases. The institution eventually became independent and became a court of equity alongside the Royal Court. The court of equity applies completely different legal rules from ordinary courts when trying cases. The law developed from this becomes equity. Therefore, the rise of equity is mainly to meet the requirements of capitalist relations of production. At the same time, it was also a measure to strengthen the rule of the British king, who wanted to use the equity court to restrict the ordinary courts.
3. Necessary supplement of written law.
In addition, it should be pointed out that in Britain, in addition to common law and equity, statutory law has also developed to a certain extent, the most typical of which is the Magna Carta and the three Westminster Acts in the period of Edward I of England. And Henry VIII's real estate usufruct act.
4. The bourgeois revolution and the formal formation of the common law tradition.
With the victory of the bourgeois revolution, in order to meet the needs of the development of capitalism, English law has been reformed, which is mainly manifested in the conflict, compromise and unification of (1) common law and equity. On the eve of the Great Revolution, the struggle between common law and equity was the expression of the struggle between Congress and monarch. With the victory of the revolution, common law and equity compromise each other and develop harmoniously. By 1873 and 1875, with the promulgation of two judicial laws, ordinary courts and equity courts merged, but the coexistence of common law and equity continued to exist. (2) Restrictions on the jurisdiction of the church courts. 1857, the jurisdiction of church courts over secular cases was abolished, and divorce courts and probate courts were established. (3) A large number of written laws have appeared. Including public law laws, such as the Bill of Rights, the law of succession to the throne, the law of habeas corpus, the unified procedure law, the common law procedure law, the company law, the partnership law, the negotiable instrument law, the goods sale law, the infringement of personal status law, the theft law and so on. The increase of statute law marks the rise of parliament's status. This trend has continued until now. It should be noted that these laws are all one-way laws.
(B) the historical evolution of American law
1, colonial law
From 1607 to 1776. In the early colonial period, namely17th century, English law had little influence on the North American colonies, and the applicable laws at that time were mainly the rough local laws of the colonies. However, in the18th century, Britain strengthened its control over the North American colonies and enforced British laws by coercive means. At the same time, more and more people are familiar with English law, which has played a great role in the spread of English law in North America.
2. The formation of American legal tradition.
1776, the United States began to have its own laws after independence. By the19th century, the American common law tradition was finally established. The most fundamental reason is that Americans are British immigrants with the same language and tradition. Moreover, English law had a certain influence on American law during the colonial period. Coupled with the spread of legal theory. America finally accepted the tradition of common law. However, American law also shows some characteristics different from English law. If a written constitution is adopted, the written law will occupy a greater proportion. Louisiana retains the tradition of civil law. It simplifies the proceedings and eliminates the difference between common law courts and equity courts. After the American War of Independence, its law became an independent branch of the common law system.
Third, the main characteristics of the Anglo-American legal system
(a) In the way of thinking and operation of law, the common law system uses the distinguishing technique. The mode of this method can be summarized as: 1. Inductive method is used to summarize the legal facts in previous cases; 2. Inductive method is used to conclude and judge the legal facts of the case; 3. Divide the legal facts in the two cases into substantive facts and non-substantive facts; 4. Compare and analyze whether the substantive facts of the two cases are the same or similar. 5. Find out the rules or principles contained in the precedent. 6. If the substantive elements in the two cases are the same or similar, the rules or principles contained in the precedent can be applied to the pending case according to the principle of following the precedent. There are three ways to deal with precedent: 1, follow precedent; Generally speaking, the lower court should follow the precedent of the higher court, and the court of appeal should also follow its previous precedent. 2. Overturn the precedent. In the United States, both the federal Supreme Court and the state supreme courts have the right to overturn previous judgments. 3. Avoid precedents; It is mainly applicable to the case that the lower court is unwilling to apply the precedent but is unwilling to publicly overturn it, and this precedent can be avoided on the grounds that there are substantial differences between the first and second trial cases.
(2) In the legal form, case law plays an important role. Traditionally, the case law of Anglo-American law system is dominant, but its statute law has been increasing since the 9th century, but the statute law is still restricted by the interpretation of case law. Case law generally refers to the legal principles or rules established in the judgment of the High Court. Such principles or rules are binding or influential on future judgments. Case law is also a statute law. Because these rules are created by judges when trying cases, they are also called judges to make laws.
In addition to case law, there are a certain number of statutory laws and some codes in common law countries. Such as the Uniform Commercial Code and the Constitution of the United States. However, compared with the civil law system, its statutes and codes are still few, and its influence on the legal system is far less than that of case law.
On the relationship between case law and statute law, it is an interactive and mutually restrictive relationship. Statutory law can change case law. At the same time, in the application process of statute law, case law can amend statute law through the interpretation of judges. If this interpretation deviates too much from the intention of legislators, it will be changed by legislators in the form of written law.
(3) In terms of legal classification, the Anglo-American legal system has no strict concept of departmental law, that is, there is no systematic and logical legal classification, and their legal classification is more practical. The reasons are as follows: 1. Anglo-American legal system attached great importance to writ and litigation form from the beginning, and the division of this litigation form itself lacked logic and systematicness, which hindered the scientific research of legal classification by British jurists. 2. Anglo-American legal system emphasizes case law, but opposes codification. Case law emphasizes practical experience and ignores abstract generalization and theoretical discussion. 3. The common law system is divided into ordinary courts and equitable courts in court setting. From a political point of view, the division between common law and equity is the expression of the struggle between the parliament and the king, and from a legal and technical point of view, equity is the modification and supplement to the defects of common law. Equity is based on common law. The value of his explanation lies in pointing out the conflicts and contradictions between universal justice and individual justice. There is no difference between ordinary courts and administrative courts. Therefore, there is no obvious difference between cases involving political power and ordinary private cases. This also hinders the classification of laws, especially the formation of concepts of public law and private law. 4. In the development of Anglo-American legal system, judges and lawyers are the main driving forces. Moreover, the mode of education is mainly apprenticeship, which determines that they are more related to specific cases. And despise the legal classification in the abstract theoretical sense. In addition, as mentioned above, the common law system has a long tradition of dividing common law and equity. Although there is no distinction between common law courts and equity courts at present, the difference between common law and equity still exists today.
(4) In the aspect of legal education, the common law system mainly focuses on American vocational education. Students have obtained a bachelor's degree before entering school, and the teaching method is case teaching method, which attaches importance to cultivating students' practical operation ability. After graduation, the doctor of law degree (J, D) is awarded, and each school has greater autonomy and is not restricted by the educational administrative organ. In Britain, legal education in universities is somewhat similar to that in continental law system, and it also pays attention to systematic teaching. But before they graduate from college, they have to go through the training of law school or bar association. At this time, the education was mainly vocational education, which was still influenced by the tradition of apprenticeship education.
(5) in the legal profession. Professional mobility is great, and judges, especially judges in federal courts, are generally lawyers. Lawyers are very active in politics. The social status of judges and lawyers is also higher than that of civil law.
2. Civil law system
Also known as civillawsystem, Romano-Germanic law system or statutory law system. In western legal works, it is often called the continental law system, while in China's legal works, it is often called the continental law system. It refers to the legal system established by most European countries on the basis of Roman law from the beginning of 19 century, represented by the French Civil Code 1804 and the German Civil Code 1896, and other countries or regions followed this system. It is a legal system with a long history and great influence, which is juxtaposed with the Anglo-American legal system in western countries.
Roman law reflected and adjusted the legal relationship between simple commodity production and commodity exchange, which was highly developed in Roman slavery society and maintained private ownership in a complete legal form. In the middle and late Middle Ages, Roman law was widely spread in Europe, resulting in some scholars and officials familiar with Roman law. After the modern bourgeoisie overthrew the feudal system, it completely adopted the system, concepts and principles of Roman law, and modified and developed them to meet the needs of capitalism. 1804, Napoleon personally directed the formulation of the French Civil Code in accordance with the bourgeois slogan of "freedom, equality and fraternity" and the principle of inviolability of private property and free competition, which is the most typical legislation in this legal system. Although the law after the unification of Germany has the feudal residual nature, the German Civil Code of 1896 is more precise and complete in legislative principles and technology, and it is also one of the representative codes of the civil law system.
Commentators have different views on the characteristics of civil law system, which can be summarized as: 1, clarifying the division of labor between legislation and justice, and emphasizing the authority of written code. Although judges are allowed discretion, and the role of precedents and customs in interpreting laws is also recognized, they generally do not recognize the law-making function of judges, emphasizing that legislation is the authority of parliament, judges can only apply laws, and judgments must be based on written laws, not precedents. 2. Put more emphasis on state intervention and the unification of legal system, especially in procedural law. For example, many legal acts need to be verified and registered by the state, the procuratorial organs monopolize the right of public prosecution, adopt the trial system, and unify the court system. 3. It is the tradition of Roman law to attach importance to the theoretical generalization of law and emphasize the role of general principles of code. Up to now, the Anglo-American legal system is not as strict as the continental legal system, and the law only focuses on specific provisions. 4. Pay attention to the systematic arrangement of codes, emphasizing the logic of regulations, the clarity of concepts and the conciseness of languages. Of course, these characteristics are only relative.
With the outward expansion of some European colonial countries, the civil law system also extended to Latin America, Africa, Asia and other places. Due to different origins, the civil law system can be roughly divided into two branches: France, Belgium, the Netherlands, Italy, Spain and Latin America. Germany, Austria, Switzerland and Japan belong to the latter. In countries with the same legal system, with the changes and development of the political and economic situation, some countries have great characteristics. For example, Japanese law was greatly influenced by American law after World War II. Nordic Scandinavian countries have some inherent characteristics; The Netherlands has formed the so-called Roman-Dutch legal system.