scholarly journals Better to Explain or to Testify? The Position of the Accused as a Source of Oral Evidence in a Criminal Trial in a Comparative Perspective

2021 ◽  
Vol 27 ◽  
pp. 47-77
Author(s):  
Hanna Kuczyńska
Keyword(s):  
Common Law ◽  
Criminal Trial ◽  
Comparative Perspective ◽  
Legal Systems ◽  
Anglo Saxon ◽  
Present Evidence ◽  
Different Types ◽  
Different Shapes ◽  
The Common ◽  
Oral Evidence

In this article the position of the accused as a source of personal evidence in three different European legal systems: Poland, Germany, and England, will be presented. This analysis will be oriented to understand the way of functioning of the two different models of giving statements of fact by the accused at a criminal trial. The main difference is that in the common law model of criminal trial the accused may only present evidence by testifying as a witness speaking about what happened, whereas in the continental model the accused gives a specific personal type of evidence (that in the Anglo-Saxon literature is rather described as “oral evidence”) that is known as explanations. From this differentiation several consequences arise: among others, the possibility of presenting untruthful explanations and presenting many versions of events in the continental model which have to be assessed by the judges. At the same time, the same right of the accused to silence and not to give incriminating evidence applies in both models of criminal trial – however, in two different shapes and with different types of limitations.

scholarly journals Appealing the Judgments Issued in Criminal Trial with the Participation of Lay Judges in Poland and Jury in England

2019 ◽  
Vol 59 (1) ◽  
pp. 85-96
Author(s):  
Dariusz Kużelewski
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Criminal Procedure ◽  
Criminal Trial ◽  
Legal Systems ◽  
Criminal Cases ◽  
Law System ◽  
The Public ◽  
System A ◽  
The Common

Abstract The objective of the paper is to present the differences in the grounds of appeal and the appeal proceedings against judgments issued by a court composed of representatives of the public in a criminal trial at first instance. At present, citizens are allowed to adjudicate most often in one of three forms: persons adjudicating independently without the participation of a professional factor, who are not professionals in the field of law and criminal procedure (e.g. judges of the peace in the common law system); a jury composed of citizens and adjudicating mostly on guilt of the accused; or lay judges adjudicating all aspects of the case in one panel together with professional judges. However, the participation of laymen in adjudication is not a prevailing rule. Many countries legal systems do not allow the citizens to co-decide in criminal cases. The paper also indicates the arguments for the democratization of the judiciary through a wider admission of citizens to participate in criminal justice. This issue has been examined on the background of three aspects of democracy: representative, deliberative and participatory.

The Experiences of Civil Lawyers When Studying the Common Law

2013 ◽  
Vol 8 ◽  
pp. 1-20
Author(s):  
Margaret Fordham
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
The Common

AbstractThis article examines the issues experienced by civil lawyers when studying the common law. It considers the extent of the differences between common law and civil law legal systems, examines the challenges which students from civil law jurisdictions face when first exposed to the common law, analyses the various ways in which these challenges may be met, and summarises civilians’ overall impressions of the common law.

12. Hearsay admissible by statute in civil proceedings

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Civil Justice ◽  
Civil Proceedings ◽  
The Common ◽  
Hearsay Rule ◽  
Oral Evidence

Under the common law rule against hearsay, any assertion, other than one made by a person while giving oral evidence in the proceedings, was inadmissible if tendered as evidence of the facts asserted. The Civil Evidence Act 1968 constituted a major assault upon the common law rule in civil proceedings by making provisions for the admissibility of both oral and written hearsay subject to certain conditions. In June 1988 the Civil Justice Review recommended an inquiry by a law reform agency into the usefulness of the hearsay rule in civil proceedings and the machinery for rendering it admissible. The recommendations were put into effect by the Civil Evidence Act 1995. This chapter discusses the admissibility of hearsay under the Civil Evidence Act 1995; safeguards; proof of statements contained in documents; evidence formerly admissible at common law; and Ogden tables.

Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

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 More in common (law) than originally thought? A theoretical first comparison of the Magna Carta and the Księga Elbląska

2020 ◽  
Vol 91 ◽  
pp. 25-36
Author(s):  
J. Patrick Higgins
Keyword(s):  
Textual Analysis ◽  
Common Law ◽  
Comparative Perspective ◽  
Legal Institutions ◽  
Legal Systems ◽  
13Th Century ◽  
Magna Carta

Medieval legal scholars generally do not compare the Polish and English legal systems, though in the 13th century they share a surprising number of similarities. This is especially clear if one considers the convergent of evolution of legal institutions in response to socio-historical problems. This is concretely traced through historical and textual analysis of Magna Carta and Księga Elbląska, two foundational texts in their respective legal systems. Ramifications of this new comparative perspective are discussed, with avenues of further research outlined.

scholarly journals Pojedini aspekti građanskopravnog položaja udatih žena u srednjovjekovnoj Engleskoj

2021 ◽  
Vol 1 (2/2020) ◽  
pp. 38-61
Author(s):  
Milica Ristić
Keyword(s):  
Legal System ◽  
Justice System ◽  
Common Law ◽  
Married Women ◽  
Medieval England ◽  
Legal Capacity ◽  
Legal Systems ◽  
Basic Source ◽  
The Common ◽  
The Moment

The arrival of the Norman tribes in the territory of England inevitably meant the influence of the customs of these tribes on the formation of a new legal system, known as „common law”. Soon after, this system established the judicial precedent as the basic source of law, which made it significantly different from European continental legal systems. However, when it came to the position of women, the common law world was the same as the continental legal systems. It was the male world, as evidenced by the famous Blackstone’s thought that husband and wife are one, and that one is the husband. In the moment of marriage, the wife would lose her legal capacity, and her personality would be drowned in her husband’s power over her and her property. Considering many other restrictions on women’s rights that will be addressed in the paper, it is not surprising that widows enjoyed the best status in medieval England, mostly owing to the institute of dower. This injustice was corrected by the emergence of the justice system and especially the trust institute. This paper is dedicated to the stages of development of the rights of married women in medieval England from complete denial to their affirmation, and especially to the contribution of the institutions of equity law to that development.

scholarly journals RZYMSKA SOCIETAS A PARTNERSHIP SYSTEMU COMMON LAW

2017 ◽  
Vol 1 ◽  
pp. 151
Author(s):  
Ewa Dziuban
Keyword(s):  
Early Stage ◽  
Common Law ◽  
Similar Solution ◽  
Legal Systems ◽  
Legal Form ◽  
Exact Answer ◽  
Outer World ◽  
The Subject ◽  
The Common ◽  
The Way

ROMAN SOCIETAS AND THE COMMON LAW PARTNERSHIPThe construction of roman societas in comparison with the common law partnership was the subject of authors inquiry. The idea was to find whether these two contracts, being created in a very different time and situation, with ages of various experiences between them, could, in some way, resemble. In other words - is that possible that the similar aim of the contracts determined the shape of the legal form?Both constructions were analysed stressing their most significant points.The comparison was led due to the pattern established by the author, created to make it more readable.As a result every characteristic was composed of the following parts:1. description of the contract’s nature;2. types of the contract;3. inner relations between partners;4. societas/partnership in relation to outer world;5. dissolving the contract.On this basis author examined the findings.The pointed conclusions seemed to provide a very interesting start for further inquiries. The reason for this is, as it occurred, that between two legal systems, existing in separate ages and conditions, with settled opinion on their incompatibility, more than few similarities can be found.Author did not give a straight answer to the question why these similarities really exist. In fact she provides at least two possible explanations without prejudice.Actually to give a more exact answer deeper studies shall be undertaken. However even at this very early stage it can be said, that both constructions, even though so faraway in various dimensions from each other, developed compatible solutions on their way to find the best idea how the goal can be achieved. And this goal, as it occurred from the contracts’ nature, seemed to be analogous.Is the similar solution a question of reception? Or maybe both systems parallel found the way, which occurred to be the best and, in the same time, convergent? Maybe the catalogue of best solutions is closed and sooner or later every system shall come to it?These questions must be asked. Even if or especially that the answers are neither easy nor immediate.Author finished this first stage of her studies leaving them open but with the reservation that inquiry will be continued.

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