Nomophilacy and Beyond

2015 ◽  
Vol 2 (4) ◽  
pp. 281-315
Author(s):  
Giorgio Fabio Colombo
Keyword(s):  
Civil Law ◽  
Comparative Law ◽  
Civil Procedure ◽  
Civil Litigation ◽  
Access To Justice ◽  
Legal Systems ◽  
Stare Decisis ◽  
Supreme Courts ◽  
Institutional Approach

The issue of how civil law jurisdictions rely on precedents in the absence of a firm stare decisis rule is one of the most debated topics in comparative law. While most studies focus on the convergence of legal systems and/or rely on socio-legal reflections, this paper employs an institutional approach based on the comparison of the supreme courts of Italy and Japan, two civil law countries that share many similarities in history, perceptions of the civil litigation system, and eventual drift towards a quasi-precedential model. The study tries to demonstrate that even when there are no formally binding precedents, technical, procedural rules make supreme courts’ decisions fundamental for the formation of norms. The analysis highlights the different weight each factor (i.e. structure and functioning of the supreme courts, reforms in civil procedure, access to justice) and actor (i.e. judges, scholars) has in the formation and application of precedents in Italy and Japan.

Concept of Single Civil Procedure Code: Suggestions of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Екатерина Ганичева ◽  
Ekaterina Ganicheva ◽  
Андрей Габов ◽  
Andrey Gabov ◽  
Мария Глазкова ◽  
...  
Keyword(s):  
Russian Federation ◽  
Comparative Law ◽  
Civil Procedure ◽  
Access To Justice ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Legislative Activity ◽  
The Government

This publication is the result of collective discussion at the Institute of Legislation and Comparative Law under the Government of the Russian Federation of the Concept of a common code of civil procedure adopted in 2014. The article deals with the problem of harmonization of legislation governing the consideration of the various categories of cases within the jurisdiction of the courts of general jurisdiction and arbitration courts. Particular attention is paid to the problems of access to justice, coordination of legislative activity, taking into account the future prospects of unification of the rules and institutions governing the procedural arrangements of civil, administrative and criminal proceedings. The article describes the objective relationship between the development of an of procedural law and the law on the judicial system, which must be taken into account when solving problems to ensure the effective operation of the courts at all stages of trial and in all judicial instances. Certain problems that arose after the unification of the higher judiciary authorities are reviewed, recommendations aimed at improving the structure and organizational forms of the Supreme Court of the Russian Federation are given.

scholarly journals The Divergence of Legal Procedures

2009 ◽  
Vol 1 (2) ◽  
pp. 138-162 ◽  
Author(s):  
Aron Balas ◽  
Rafael La Porta ◽  
Florencio Lopez-de-Silanes ◽  
Andrei Shleifer
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
Contract Enforcement ◽  
Legal Systems ◽  
Legal Rules ◽  
Legal Origins ◽  
Lasting Influence ◽  
Legal Procedures

Simeon Djankov et al. (2003) introduce a measure of the quality of contract enforcement—the formalism of civil procedure—for 109 countries as of 2000. For 40 of these countries, we compute procedural formalism every year since 1950. We find that large differences in procedural formalism between common and civil law countries existed in 1950 and widened by 2000. For this area of law, the findings are inconsistent with the hypothesis that national legal systems are converging, and support the view that legal origins exert long lasting influence on legal rules. (JEL K41, O17)

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

scholarly journals Precedentes vinculantes à brasileira?

2017 ◽  
Vol 1 (2) ◽  
pp. 272
Author(s):  
Murilo Strätz
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
Anglo Saxon ◽  
Stare Decisis

<p><strong>RESUMO:</strong></p><p><span style="font-family: Times New Roman;">Trata-se de breve estudo sobre as regras processuais que atribuem certos graus de efeito vinculante a determinados pronunciamentos judiciais, tais como encartadas pelo legislador de 2015 no subsistema instituído pelo Novo Código de Processo Civil. A análise de tais preceitos legais, porém, não se resume a uma abordagem meramente normativa (descritiva ou manualesca) desse recente fenômeno, tampouco pretende encaixá-los na doutrina estrangeira relativa aos precedentes vinculantes (<em>binding precedents</em>) encontrados nos sistemas que adotam o <em>stare decisis</em>. Procura-se entender as noveis formas de pronunciamentos vinculantes a partir de um modelo civilístico que, não obstante se antagonize ao tronco anglo-saxão, também preza pela segurança jurídica como um protoprincípio primordial.</span></p><p><span style="font-family: Times New Roman;"><strong>ABSTRACT:</strong><br /></span></p><p><span style="font-family: Times New Roman;">This is a brief study of the procedural rules that assign several degrees of binding efect to certain judicial pronouncements, such as those included by the 2015 legislator in the subsystem established by the New Code of Civil Procedure. The analysis of such legal precepts, however, is not limited to a purely normative (descriptive or manual format) approach to this recent phenomenon, nor does it intend to ft them into the foreign doctrine concerning binding precedents found in systems that adopt the stare decisis. It seeks to understand the new forms of binding pronouncements from a civil law model that, despite antagonizing the Anglo-Saxon trunk, also values juridical security as a primordial principle. </span></p>

scholarly journals Mediation in Different Areas of Chinese Legal Reality – Parametrisation of Selected Terminology

2016 ◽  
Vol 45 (1) ◽  
pp. 175-186
Author(s):  
Joanna Grzybek
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Translation ◽  
Science Centre ◽  
National Science ◽  
The Republic ◽  
Research Grant

Abstract The paper deals with terminological issues in legal translation. The author has researched the process of establishing equivalents for partially equivalent terminology, using the parametrical approach to legal translation. The research consists of the terminological analysis of the texts of mediation regulations formulated in Chinese and Polish. The objective was to establish translational equivalents in the case of significant differences between the legal systems of the above mentioned linguistic area. The research was financed from the research grant no. 2012/07/E/HS2/00678, titled: Parameterisation of legilinguistic translatology in the scope of civil law and civil procedure awarded by the National Science Centre of the Republic of Poland (Sonata Bis program). Determining the acceptability of functional equivalents in the selected linguistic area is possible by comparison of their semantics with the legal structure in different legal systems and cultures. The author investigates if attributing properties from dimensions relevant in translation to mediation law terms can be helpful in the process of translation.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

FIDUCIARY OWNERSHIP AND TRUSTS IN A COMPARATIVE PERSPECTIVE

2014 ◽  
Vol 63 (4) ◽  
pp. 901-933
Author(s):  
Daniel Clarry
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Comparative Perspective ◽  
Legal Institutions ◽  
Legal Systems ◽  
Legal Traditions ◽  
Trust Property

AbstractOwnership is an essential feature of trusts that serves as a useful analytical and comparative tool in order to cross legal traditions and compare different legal institutions, which to a greater or lesser extent serve similar socio-economic and legal functions. The concentration on ownership enables one to burrow down into the normative roots of different legal traditions. This article comprises three substantive parts: first, characterizing ownership and the manner in which this concept distinguishes the civil and common law traditions; second, contextualizing ownership in relation to trusts from different legal systems; and, third, conceptualizing some contemporary challenges arising out of the divergent nature of ownership in the phenomenology of the trust paradigm, the value of the trust to comparative law and its effect on the civil law as a distinct tradition. It is argued that trusts necessarily involve the fiduciary administration of property and that ‘fiduciary ownership’ is a better shorthand description of the encumbered nature of trust property, rather than ‘dual’ or ‘split’ ownership, which is misleading and mistaken.

scholarly journals Análise Econômica do Direito, Incidente de Resolução de Demandas Repetitivas e Juizados Especiais

2021 ◽  
Vol 13 (13) ◽  
pp. 319-339
Author(s):  
Cíntia Fernanda de Abreu Melo ◽  
Leandro Lyra Braga Dognini
Keyword(s):  
Statistical Analysis ◽  
Law And Economics ◽  
Theoretical Framework ◽  
Civil Procedure ◽  
Substantial Improvement ◽  
Civil Litigation ◽  
Access To Justice ◽  
National Council ◽  
Promising Solution

The Code of Civil Procedure (CPC, in portuguese, Código de Processo Civil) of 2015 gave greater prominence to precedents as a mechanism for rationalizing jurisdictional activity. In a context of expansion of civil litigation, the aim of this article is to assess, adopting the Law and Economics (AED, in portuguese, Análise Econômica do Direito) theoretical framework, the role of judicial precedents in the search for a more complete, stable and isonomic system. In this sense, the repetitive demands resolution incident (IRDR, in portuguese, Incidente de Resolução de Demandas Repetitivas) stands out as an institute that aims to propose a solution to mass demands based on the same question of law. The hypothesis that arises is that the effectiveness of the jurisdictional provision of the special courts is subject to substantial improvement with the application of the IRDR, passing through the analysis regarding the constitutionality of such an incident, and, if constitutional, what would be the proper procedure, since the CPC essentially turns to the incident in the courts. The methodology is based on the theoretical references of AED, conforming to precedents, IRDR and special courts, in line with the statistical analysis provided by National Council of Justice (CNJ, in portuguese, Conselho Nacional de Justiça). The results achieved demonstrate that special courts respond for significant number of new processes that enter the Judiciary, following the primacy of access to justice, with the model developed by Mendes and Romano Neto being a promising solution to the application of the IRDR in such jurisdictional sphere.

scholarly journals COMPARATIVE TRANSNATIONAL CIVIL PROCEDURE: EXCLUSIVE AND EXORBITANT CIVIL JURISDICTION IN BRAZIL, UNITED STATES OF AMERICA AND EUROPEAN UNION

2019 ◽  
Vol 1 (54) ◽  
pp. 73
Author(s):  
Augusto Jaeger JUNIOR ◽  
Nicole Rinaldi de BARCELLOS
Keyword(s):  
European Union ◽  
North American ◽  
Civil Procedure ◽  
Access To Justice ◽  
Legal Systems ◽  
Negative Consequences ◽  
Best Interest ◽  
Exclusive Jurisdiction ◽  
Transnational Justice ◽  
Special Rules

ABSTRACTThis study aims to explore the rules on the jurisdiction of courts in the Brazilian, North-American and European Union legal systems, and their reasonableness, in order to determine if they contain characteristics of exorbitance and exclusivity in the exercise of jurisdiction, and to compare them. Legislators in different legal orders tend to enact norms with comprehensive grounds for jurisdiction, with the intention of protection of their own interests, which are not always consistent with the best interest of the parties or the proximity of the case with the forum. To develop the mentioned objectives, the study was divided into two parts. In the first section, the general and special rules of jurisdiction in the Brazilian, North-American and European Union legal systems are explored. In the second section, the exorbitance and exclusivity of jurisdiction are analyzed, in order to propose a comparison between the three systems. In the study, we identified exorbitant and exclusive jurisdiction rules in all legal systems analyzed, which have negative consequences on the access to justice of individuals. Rules on jurisdiction should be instruments for the promotion of transnational justice and therefore exorbitant and exclusive rules on jurisdiction should be limited.KEYWORDS:International civil procedure; International civil jurisdiction; Reasonable jurisdiction; Exclusive and exorbitant civil jurisdiction. RESUMO Este estudo pretende explorar as regras de jurisdição internacional nos sistemas jurídicos do Brasil, dos Estados Unidos da América e da União Europeia, e a sua razoabilidade, com fins de desvendar se eles contêm características de exorbitância e exclusividade no exercício da jurisdição, comparando-as. Legisladores em diferentes ordens jurídicas tendem a promulgar normas com amplos fundamentos para jurisdição, com a intenção de proteger seus próprios interesses, que nem sempre são compatíveis com o melhor interesse das partes ou com a proximidade do caso com o foro. Para desenvolver os objetivos propostos, o estudo foi dividido em duas partes. Na primeira seção, são analisadas as regras gerais e especiais de jurisdição dos sistemas jurídicos do Brasil, dos Estados Unidos da América e da União Europeia. Na segunda seção, aborda-se exorbitância e exclusividade da jurisdição, com fins de propor uma comparação entre os três sistemas nesta matéria. Com o estudo, identificamos regras de jurisdição exorbitantes e exclusivas em todos os sistemas legais analisados, que possuem consequências negativas ao acesso à justiça dos indivíduos. As regras sobre a jurisdição devem ser instrumentos para apromoção da justiça transnacional e, portanto, as regras exorbitantes e exclusivas sobre jurisdição devem ser limitadas.PALAVRAS-CHAVE:Processo civil internacional; Jurisdição civil internacional; Jurisdição razoável; Jurisdição civil exclusiva e exorbitante.

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