Brazil

2015 ◽  
Author(s):  
Adrian Ward ◽  
Marcia Araujo Sabino de Freitas ◽  
Henrique Moraes Prata ◽  
Fabr�cio Bertini Pasquot Polido
Keyword(s):  
Hybrid System ◽  
Common Law ◽  
Civil Law ◽  
State Courts ◽  
Elderly Persons ◽  
Federal Law ◽  
Constitutional Amendments ◽  
Federal Constitution ◽  
The Status ◽  
International Conventions

Brazil is a civil law country, with mainly codified law, but which as a result of increasing common law influence is moving towards being a hybrid system. Brazil is a federal republic. States have their own laws and courts, but adult incapacity issues are governed mainly by federal law. State courts have jurisdiction in procedure for incapacitation. Cases are normally heard at first instance in specialized family and succession courts. The federal constitution of 1988 is frequently cited. International conventions approved by qualified majorities in both Houses of Congress attain the status of constitutional amendments. This applies, for example, to UN CRPD. The current civil code dates from 2002. There are in addition relevant statutes, particularly the Statute of Elderly Persons 2003 (‘2003 statute’).

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

scholarly journals COMMON SENSE AND LINGUISTIC EXAMINATION IN DIFFERENT LEGAL SYSTEMS

2016 ◽  
pp. 214-219 ◽  
Author(s):  
A. D. Shmelev
Keyword(s):  
Common Law ◽  
Civil Law ◽  
United States Supreme Court ◽  
The United States ◽  
Linguistic Competence ◽  
National Language ◽  
Legal Systems ◽  
Federal Law ◽  
The Russian Federation

The paper discusses the role of linguistic examination in civil law and common law legal systems. It argues that while it is forensic linguistic expertise that often plays an important role in civil law systems, the lay people’s opinion is crucial in common law systems. It suggests that the best way to obtain adequate results for civil law systems (including the Russian legal system) is to combine the two approaches, that is, to make use of an expert linguistic analysis of the linguistic competence of lay speakers of the language in question. Various examples illustrate the point (among them the problems arising in civil suits of honor protection and business reputation defense as well as the famous “tomato case”, in which the United States Supreme Court addressed whether a tomato was classified as a fruit or a vegetable). In addition, the paper discusses vague wording and consequent difficulty of implementation of the “Federal Law on the National Language of the Russian Federation.”

3 Arbitrability of Disputes

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
International Economic ◽  
Civil Law ◽  
State Courts ◽  
Constitutional Court ◽  
Federal Law ◽  
Real Property ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Economic Relations ◽  
International Economic Relations

This chapter examines the concept of arbitrability. Arbitrability is about whether a certain category of dispute is eligible for settlement by arbitration or should be reserved for state courts. The 1993 Law on International Commercial Arbitration provided that ‘disputes arising from contractual and other civil law relationships and other types of international economic relations, insofar as one of the parties is outside the country’, fall within the scope of this Law. Meanwhile, the 2002 Law on (domestic) Arbitration provided that any dispute arising from civil law relations could be handled by arbitration, unless otherwise provided by Federal law. Despite such provisions, Russian courts narrowly interpreted the scope of arbitrability. For example, disputes on real property were not arbitrable until the decision of the Constitutional Court in 2011. Since this decision, the focus was on the arbitrability of corporate disputes. The 2015 Reform acknowledged the arbitrability of corporate disputes with some exceptions and requirements. Some judges found a basis for non-arbitrability of certain disputes in the Code of Commercial Court Procedure (APK).

Freedom of Testation and Family Claims in Canada

2020 ◽  
pp. 507-533
Author(s):  
Alexandra Popovici ◽  
Lionel Smith
Keyword(s):  
First Nations ◽  
Common Law ◽  
Civil Law ◽  
Federal Law ◽  
Deceased Person ◽  
Legal Obligations ◽  
The Family ◽  
The Common ◽  
The Moment ◽  
Law Of Succession

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces, under which courts have the discretion to grant an allowance; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. Quebec law, by contrast, aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.

scholarly journals Compulsory Portion and Family Provision in the Netherlands

2020 ◽  
pp. 319-344
Author(s):  
Wilbert D Kolkman
Keyword(s):  
Complex System ◽  
The Netherlands ◽  
Hybrid System ◽  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Historical Overview ◽  
German Model ◽  
French Model

This chapter describes and analyses the Dutch rules on mandatory family protection. It starts with a historical overview, leading to the Civil Code of 1838 with its forced heirship (on the French model). In 2003, the Netherlands moved from this forced heirship (in kind) to a compulsory portion (in value) for descendants (on the German model). For the surviving spouse and the children the new Civil Code introduced ‘other statutory entitlements’ in the form of a right of usufruct and lump sums. The results is a hybrid system of family protection, with both civil law (fixed portion) and common law (discretionary claim) features. The chapter sheds light on a number of problems arising from this complex system, such as the role of gifts. It concludes by arguing that the compulsory portion can be abolished.

scholarly journals Degrees of Deference: Applying vs. Adopting Another Sovereign's Law

2018 ◽  
Author(s):  
Kevin M. Clermont
Keyword(s):  
International Law ◽  
Federal Courts ◽  
State Courts ◽  
State Law ◽  
Federal Law ◽  
Local Rule ◽  
The Federalist ◽  
The Status ◽  
Local Courts ◽  
Voluntary Adoption

103 Cornell L. Rev. 243 (2018)Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the other sovereign’s law properly governing by its own force, while adoption follows from voluntary consultation of the other’s law while formulating the local rule of decision in pursuit of fairness, convenience, or other local policies. The applying/adopting distinction can be difficult to draw, but draw it we must because many binary practical consequences turn on it. Those consequences range beyond the federalist implications for federal and state courts to the modifiability of the sovereign’s law and the availability of original and appellate jurisdiction in the local courts.

scholarly journals Canadian Bijuralism and the Concept of an Acquisition of Property in the Federal Income Tax Act

2010 ◽  
Vol 54 (3) ◽  
pp. 423-462
Author(s):  
David G. Duff
Keyword(s):  
Income Tax ◽  
Common Law ◽  
Civil Law ◽  
Capital Cost ◽  
Tax Credits ◽  
Federal Law ◽  
Primary Reference ◽  
Federal Income Tax ◽  
The Common ◽  
Tax Benefits

Abstract The acquisition of property plays an important role in the federal Income Tax Act (ITA), determining eligibility for a number of tax benefits, including entitlement to capital cost allowance, investment tax credits, and the deductibility of interest expenses incurred in respect of eligible property. In spite of its importance, the concept of an acquisition of property is not defined in the ITA, and it has been subject to divergent interpretations in the common law and the civil law. The author traces the sources of law informing the meaning of an acquisition of property in the common law and the civil law, and concludes that certain transactions may be subject to different tax consequences depending on whether they occurred in a common law province or in Quebec. The author demonstrates that the primary reference for determining whether a taxpayer acquired property—the twofold test in M.N.R. v. Wardean Drilling Ltd.—is premised on common law concepts and is incompatible with the goals of Canadian bijuralism expressed in the Federal Law—Civil Law Harmonization Act, No. 1 and section 8.1 of the federal Interpretation Act. In response to this contradiction, the author proposes a number of statutory amendments to ensure the uniform and predictable application of the ITA across Canada.

2. Legal systems and sources of law

2017 ◽  
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England and Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

Introduction to the legal system

2021 ◽  
pp. 67-74
Author(s):  
Anna Smajdor ◽  
Jonathan Herring ◽  
Robert Wheeler
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Primary Sources ◽  
European Law ◽  
General Introduction ◽  
System P ◽  
The Status ◽  
The Difference

This chapter provides a general introduction to the legal system. It explains the court structure in England. It sets out the primary sources of law: statute and common law. It also explores the difference between civil law and criminal law, and how different kinds of cases can be brought arising from the same set of facts. It also considers the status of European Law following Brexit.

Discrepancies between Civil Law and Common Law Federations

2016 ◽  
Vol 19 (1) ◽  
pp. 368-418
Author(s):  
Thomas Fleiner
Keyword(s):  
French Revolution ◽  
Common Law ◽  
Civil Law ◽  
The State ◽  
Major Function ◽  
Feudal Society ◽  
Federal Constitution ◽  
The Common ◽  
Federal Laws ◽  
The French Revolution

Over the last decade, missions of the UN have assisted with constitutional reforms including issues of federalism. The hopes for peace with regard to federal structures have often failed. This paper elaborates possible reasons why these hopes were disappointed. It will show that one should understand the differences between Common Law and continental systems with regard to federalism. Some experts from Common Law countries fail to appreciate the substantial difference between federal Constitutions embedded in a Civil Law culture and those embedded in a Common Law culture. The reasons for the success or failure of past, present and future federal reforms may help to improve UN activities in this field. States of the Common Law tradition are not collective units, which have to steer their society. The Jacobins of the French Revolution, considered the State as their instrument to transform feudal society into a society of equal individuals. The Civil Law tradition has its roots in the French Revolution and in the sovereignty of the national legislative assembly as the only legitimate lawmaker of the State. The unity of the law does not depend on decisions of courts but only on the legislature. Constitutions of Civil Law federations need to enable the specified governmental branches of the federation to impose sanctions against federal units that fail to comply with federal laws. According to the perspective of the Civil Law one has to deal with two ‘States’ claiming sovereignty in a hierarchy, while from the perspective of the Common Law one has to deal with mere ‘governments.’ Constitutions of multicultural federations embedded within the Civil Law culture will have to empower not just the federation but also the federal units to develop the different cultural identities. To foster different cultures is however, not a major function of the State of the Common Law tradition. Federalism of the Civil Law tradition is more complex than according to the Common Law tradition. Important differences between federations of a Common Law and Civil Law tradition lies in the lawmaking power of the courts. In Common Law, courts and legislature share the task of lawmaking; in Civil Law countries, the legislature regulates all issues of civil and criminal law. In a Civil Law country, legislatures, executives and courts cannot function if there is no valid local Constitution empowering those branches of the federal units. Thus, the federal Constitution of a civil law country has to establish the powers of the governmental branches of the federal units. Within federal system of the Civil Law, the federal units administer, implement and execute the laws of the federation. Constitutions of Civil Law federations need special provisions for the power of the federation to control and implement federal laws in the federal units. The civil law judiciary has no contempt of court against the administration and against authorities of federal units.

Sign in / Sign up

Export Citation Format

Share Document