scholarly journals Kontradyktoryjność i inkwizycyjność w europejskiej procedurze cywilnej XIX i XX wieku

2018 ◽  
Vol 65 (2) ◽  
pp. 123-144
Author(s):  
Anna Stawarska-Rippel
Keyword(s):  
Common Law ◽  
Cost Effective ◽  
Civil Procedure ◽  
Eastern Bloc ◽  
European Convention ◽  
Law System ◽  
Civil Process ◽  
Political Transformations ◽  
Civil Proceeding ◽  
The Individual

Socialisation of private law in the second half of the 19th century brought about a new approach to a civil process and its purpose. The main characteristics of the evolution of the civil procedure in the 19th and 20th centuries was limited autonomy of the parties to a process. This limitation was introduced to ensure fair, expedient and cost-effective judgment. A tendency to replace the principle of an adversarial trial with elements of an inquisitorial trial was observed in civil law as well as common law systems. Relevant changes were fi rst made in the Franz Klein Austrian code of civil procedure, followed by departures from the formal truth in the civil process implemented in the system in Germany, Hungary, the Swiss cantons of Zurich and Bern, in Poland, and later, in the second half of the 20th century, also in France. In the common law system, the reform of 1999 ascertained judges a number of discretionary powers to help them establish the facts in a civil proceeding. Those changes added the public element in the civil procedure, but the very idea of a private process and the protection of private interests has been maintained. The totalitarian regimes which emerged in some European states considerably distorted the process of shaping the relationship between the state and the individual. In the socialist civil proceeding, the principle ne eat iudex ultra petita partium was replaced with ex offi cio ultra petita, which was a novelty characteristic of the civil procedure of totalitarian states. The departure from an adversarial principle in the socialist civil process was not much different from the general tendencies observed in the civil procedure in West European states. After the political transformations and change of the regime, former states of the Eastern Bloc sought to signifi cantly increase the autonomy of the parties in a civil process. However, as experience of the Western European states shows, certain public elements must be taken into account in a civil procedure if the European Convention on Human Rights is to be observed.

Inherited legal systems and effective rule of law: Africa and the colonial legacy

2001 ◽  
Vol 39 (4) ◽  
pp. 571-596 ◽  
Author(s):  
Sandra Fullerton Joireman
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Civil Law ◽  
Point Of View ◽  
The Rule Of Law ◽  
Law System ◽  
Colonial Legacy ◽  
The Common ◽  
Common Law System ◽  
The Individual

The question of whether particular types of legal institutions influence the effectiveness of the rule of law has long been answered with conjecture. Common law lawyers and judges tend to believe that the common law system is superior. This opinion is based on the idea that the common law system inherited from the British is more able to protect the rights of the individual than civil law judicial systems. Quite the opposite point of view can be found in lawyers from civil law countries, who may view the common law system as capricious and disorganised. This paper compares the effectiveness of the rule of law in common law and civil law countries in Africa, through a cross-national statistical comparison using Freedom House and Political Risk Services data. The comparison reveals that common law countries in Africa are generally better at providing ‘rule of law’ than are civil law countries.

scholarly journals Le locus standi dans les actions d'intérêt public et la relator action : l'empire de la common law en droit québécois

2005 ◽  
Vol 29 (3) ◽  
pp. 657-687
Author(s):  
Fabien Gélinas
Keyword(s):  
Public Interest ◽  
Common Law ◽  
Attorney General ◽  
Civil Procedure ◽  
Law System ◽  
Locus Standi ◽  
Legislative Framework ◽  
Common Law System ◽  
Vexed Question ◽  
As If

The duality of the sources of Quebec law poses special problems for the jurist who must determine the juridical norm applicable to a given situation. He must work within the appropriate body of norms and, at the same time, propose a solution which is acceptable in practice. The authority of common law in Quebec extends to limits which are not well-established and not likely soon to be clarified. Starting from the vexed question of standing in public interest actions, the author elaborates on the applicability of common law with respect to the Quebec Code of Civil Procedure. The article first discusses briefly the principles of common law which have traditionally governed standing in public interest actions, together with the corresponding legislative framework established in Quebec. Emphasis is given to the rights and duties of the Attorney General, especially in the area of relator proceedings. The author questions the soundness of interpreting the Code of Civil Procedure as if it were an ordinary statute in a common law system. Bearing in mind its underlying purpose, he proposes a protectionist interpretation of the Code of Civil Procedure, less susceptible to the infiltration of common law.

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Reconciling Rights and Obligations

2003 ◽  
Vol 20 (3-4) ◽  
pp. 140-172
Author(s):  
Pernille Ironside
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Common Law ◽  
International Standards ◽  
Freedom Of Religion ◽  
Northern Nigeria ◽  
Law System ◽  
Constitutional Legality ◽  
Human Rights Norms ◽  
Criminal Matters

This article examines the debate concerning the recent reinstatement of Shari`ah law with respect to criminal matters in Northern Nigeria. The discussion explores the inherent challenges in reconciling the equally entrenched and passionate views of pro-Shari`ah supporters on their right to freedom of religion with those that question its application in terms of human rights norms and obligations, and its constitutional legality. The analysis concludes that Shari`ah laws can coexist with Nigeria’s common law system and remain relevant in the context of Islam, provided that its principles are adapted and modernized to comport with international standards for due process and are interpreted and applied consistently.

The Principle of Verbality in Simplified Civil and Administrative Proceedings

2020 ◽  
Vol 10 ◽  
pp. 70-77
Author(s):  
I. I. Tolmacheva ◽  
Keyword(s):  
General Procedure ◽  
Civil Procedure ◽  
The Real ◽  
Civil Process ◽  
Civil Cases ◽  
Simplified Procedure ◽  
Administrative Proceedings

This article analyzes the issues related to the effect of the principle of oral civil (administrative) proceedings in simplified civil (administrative) proceedings, taking into account that scientific articles Express the opinion that the principles of civil procedure are not fully applied in simplified proceedings. The author proposes to pay attention to the effect of this principle both in the General procedure for consideration of civil cases by the court, and in the simplified procedure (procedure); to identify trends in its development in the real conditions of the Russian civil process, regardless of the procedure for consideration of civil cases.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

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