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)

Corporate governance, accounting transparency and stock exchange sizes in Germany, Japan and «Anglo-Saxon» economies, 1870–1950

2019 ◽  
Vol 64 (2) ◽  
pp. 157-186
Author(s):  
Leslie Hannah
Keyword(s):  
New York ◽  
Corporate Governance ◽  
Stock Exchange ◽  
Civil Law ◽  
Corporate Bond ◽  
Stock Exchanges ◽  
Anglo Saxon ◽  
Legal Rules ◽  
Legal Origins ◽  
The Us

AbstractModern discussions of corporate governance have focused on convergence of «varieties of capitalism», particularly the recent «Americanisation» of laws and voluntary codes in Germany, Japan, and other civil law countries. However German and Japanese legal and business historians have suggested that corporate governance, accounting transparency or other favourable factors in their countries were historically a match for – or even superior to – those in the US. An alleged consequence was deeper penetration by the Berlin and Tokyo stock exchanges of their domestic economies than of the US by the New York Stock Exchange (NYSE), using measures such as market capitalization/GDP ratios. This paper reviews the classic Rajan and Zingales data on the sizes of stock exchanges. It concludes that the evidence for Japanese historical precocity relative to the US, after the necessary allowance is made for regional stock exchanges and corporate bond finance, stands up better to this closer examination than that for Germany.Many financial historians now agree that stock exchange development was not historically determined by legal origins («Anglo-Saxon» common vs Euro-Japanese civil law), though today it appears to be driven by legal rules protecting shareholders and/or bondholders and limiting directorial autocracy and information asymmetry. However, both today and historically in some cultures private order rules (voluntary codes, bourse listing requirements, bankers as trusted intermediaries, block-holder monitoring, etc) offered substitute protections, or at least complemented protective laws. This paper reviews the plausibility of these determinants of historical stock exchange sizes – and others that have been neglected – in Japan, Germany, and elsewhere, before 1950.

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 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.

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.

scholarly journals Precedentes e jurisdição constitucional no novo Código de Processo Civil

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Adriano Gonçalves Feitosa ◽  
Bernardo Silva de Seixas ◽  
Jhennifer Cristine Souza Pinto
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Federal Court ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Procedural Law ◽  
The Supreme Court ◽  
Legal Innovation

Precedentes e jurisdição constitucional no Novo Código de Processo CivilPrecedents and constitutional jurisdiction in the new Brazilian Code of Civil Procedure Adriano Gonçalves Feitosa[1]Bernardo Silva de Seixas[2]Jhennifer Cristine Souza Pinto[3] RESUMO: Este trabalho pretende demonstrar a realidade inaugurada pelo NCPC – Novo Código de Processo Civil (CPC/2015) –, apontando-lhe as inovações pertinentes ao exercício jurisdicional, à medida que o novo código, em consonância com o moderno direito processual constitucional, reforça a vinculação de certas decisões e as adequa à teoria dos precedentes judiciais. Paralelamente, é necessário comentar, em linhas gerais e numa perspectiva histórica, a respeito da interação entre os sistemas do Common Law e do Civil Law no sistema brasileiro e sua influência ao longo da trajetória de consolidação da jurisdição constitucional e processual pátria. Afinal, melhor se compreende o NCPC diante das reformas processuais promovidas ainda durante a vigência do CPC/1973. Por fim, evidencia-se o papel do Supremo Tribunal Federal como Corte Constitucional e a motivação que isso representa para a força dos precedentes no CPC/2015. PALAVRAS-CHAVE: Precedentes. Novo Código de Processo Civil. Controle de Constitucionalidade. Supremo Tribunal Federal. ABSTRACT: This paper aims to show the news introduced by the new Brazilian Code of Civil Procedure (CPC/2015), pointing out the relevant innovations in the judicial exercise, so far as the legal innovation, in line with the modern constitutional Procedural Law, reinforces the binding quality of certain judicial decisions based on a theory of legal precedents. At the same time, it had to be commented, very briefly and in a historical perspective, on the interaction between the systems of Common Law and Civil Law in the Brazilian legal system and its influence over the consolidation path of constitutional and procedural jurisdiction. After all, the NCPC can be understood through the procedural reforms promoted during the term of the old procedural law (CPC/1973). Finally, this paper highlights the role of the Supreme Court as a Constitutional Court and what this represent for the precedents in the New Brazilian Code of Civil Procedure. KEYWORDS: Precedents. New Brazilian Code of Civil Procedure. Judicial Review. Brazilian Supreme Federal Court.[1] Graduando em Direito (Universidade Federal do Amazonas – UFAM).[2] Professor da Universidade Federal do Amazonas (UFAM) e do Centro Universitário de Ensino Superior do Amazonas (CIESA). Mestre em Sistema Constitucional de Garantia de Direitos (Instituição Toledo de Ensino – ITE, 2014). Especialista em Direito Processual (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2013). Graduado em Direito (Centro Universitário de Ensino Superior do Amazonas – CIESA, 2011).[3] Graduanda em Direito (Universidade Federal do Amazonas – UFAM).

The Influences of Common Law on the Brazilian New Code of Civil Procedure

2018 ◽  
Vol 46 (3) ◽  
pp. 176-180
Author(s):  
Lucas Alves Edmundo Gomes
Keyword(s):  
Legal System ◽  
English Language ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
The Other ◽  
Legal Systems ◽  
Other Hand ◽  
The World

AbstractMost legal scholars assume that there are only two “families” of legal systems in the world: common law and civil law. Briefly, common law is applied in all countries that speak the English language and has its origination from the “habits of society.” On the other hand, civil law is applied just about everywhere else, with a few exceptions, such as in tribal law areas, jurisdictions that follow Islamic law, and a few other smaller legal systems. Brazil's New Code of Civil Procedure was promulgated in 2015 and brought innovations to Brazilian law. Elements of common law were incorporated into the Brazilian legal system, particularly that of using precedent. The application of common law elements in Brazilian law is being studied by various legal specialists. This present study explains how common law can be applied in civil law jurisdictions, similar to the way it is being adapted and applied in Brazil.

Comparative Law and the Study of Mixed Legal Systems

2006 ◽  
pp. 476-512 ◽  
Author(s):  
Jacques Du Plessis
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Development ◽  
European Context ◽  
The Common

Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, this label traditionally is only attached to those systems which represent a mix between the common law and the civilian tradition. This article focuses on what studies of mixed legal systems reveal about the broader comparative themes of the classification of legal systems, whether and how borrowing can take place, the quality of the law to which borrowing gives rise, the connection between civil law and the common law in the European context, and the role which language can play in comparative analysis and legal development.

The Evolution of a Nation

2011 ◽  
Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay
Keyword(s):  
Political Competition ◽  
Common Law ◽  
Civil Law ◽  
Legal Institutions ◽  
Colonial History ◽  
Legal Systems ◽  
Water Transportation ◽  
Long Run ◽  
Access To Water ◽  
Late Twentieth

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.

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