scholarly journals Ang lo - American Common Law and the Implementation in Vietnam

2021 ◽  
Vol 37 (1) ◽  
Author(s):  
Nguyen Dang Dung ◽  
Nguyen Dang Duy
Keyword(s):  
Legal System ◽  
Common Law ◽  
Legal Systems ◽  
Anglo American ◽  
American Legal System

Due to characteristics of the socialist legal system, in the process of development and integration, Vietnam needs to absorb the advantages of other legal systems. The paper analyzes the features and advantages of sources of the Anglo-American legal system and lessons for Vietnam.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals The Mistaken Doctrine of Common Law: A Critique

2016 ◽  
Vol 7 (3) ◽  
pp. 173-181
Author(s):  
Lukáš Nikodym ◽  
Tomáš Nikodym ◽  
Tereza Pušová
Keyword(s):  
Business Cycles ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Roman Law ◽  
The Creation ◽  
Anglo American ◽  
American Legal System

Abstract The study deals with Huerta de Soto’s thesis about the “mistaken doctrine of common law”, which is based on the equalization of depositum irregulare and mutuum contracts. He concluded that equalization of these contracts resulted in the creation of business cycles. According to this study, Huerta de Soto made a mistake when considering contracts inspired by the continental law based on Roman law. The study shows that mutuum was even in Roman law an ancient contract that was not codified, and that Huerta de Soto’s interpretation of this contract in the Anglo-American legal system is based more on civil law, not on common law as he stated in his work. Finally, the problem of common law did not lie in the equalization of the mentioned contracts, but rather in the absence of depositum irregulare contracts applied to monetary questions.

A Philosophical Perspective on the Regulation of Business

1998 ◽  
pp. 70-75
Author(s):  
Barbara Wendling
Keyword(s):  
Legal System ◽  
Modern Society ◽  
Legal Systems ◽  
Philosophical Perspective ◽  
Philosophical Foundations ◽  
Application Of Law ◽  
Legal Traditions ◽  
Anglo American ◽  
American Legal System ◽  
And Behavior

The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom, dignity, and responsibility, while the materialist worldview inherent in the continental legal systems explains its amoral assumptions about human motivations and behavior. I suggest that while the Anglo-American legal system may be justified in its moral philosophical presumptions as applied to citizens, the continental legal system, with its amoral assumptions, more accurately reflects corporations than citizens. Understanding how the philosophy behind the two legal systems influences the application of law in modern society can lead to improvements in public policy.

scholarly journals Private law in Vojvodina between two world wars: Heritage for European future

2008 ◽  
pp. 9-20 ◽  
Author(s):  
Dusan Nikolic
Keyword(s):  
Legal System ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
Private Law ◽  
Legal Systems ◽  
Global Integration ◽  
Legal Traditions ◽  
American Law ◽  
Anglo American

This article represents an overview of different legal cultures. Author compares pluralistic legal systems, concomitant to Eastern societies, with monistic legal systems typical for Western civilizations. This article demonstrates the convergence of different legal traditions as the result of regional and global integration processes. Special attention has been given to Western legal culture. In this respect, the author analyzes fundamental features of European continental law, created by legislature, and of Anglo-American law primarily formed by judiciary. European Union has been in search for a medium solution. The aim is creating a combined legal system which would include both models of law. Such combined legal systems have existed in Scotland (United Kingdom), Quebec (Canada), Louisiana (The United States of America), and South Africa. However, it has not been well known that a similar combined legal system existed in Vojvodina between two world wars. This legal heritage, in the opinion of the author, could serve as a model for creating a new ius comunae europaeum. This model represents the evidence of a successful fusion of legisla?tive (parliamentary) law and common law. In 2005 Matica Srpska launched the research project 'Private Law in Vojvodina between Two World Wars' in order to present this legal heritage nationally and inter?nationally. This Collection of Papers displays preliminary results of this research.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

scholarly journals Remedies to Fraud in Documentary Letters of Credit: A Comparative Perspective / Opravné Opatrenia Pri Podvodoch S Dokumentárnymi Akreditívami: Komparatívna Perspektíva

2016 ◽  
Vol 5 (1) ◽  
pp. 1-13
Author(s):  
Hamed Alavi
Keyword(s):  
International Trade ◽  
Legal System ◽  
Current Paper ◽  
Comparative Perspective ◽  
Legal Systems ◽  
Letters Of Credit ◽  
Legal Frameworks ◽  
American Legal System ◽  
Article 5

Abstract Article 4 of the Unified Customs and Practices of Documentary Letters of Credit establishes the notion of autonomy principle by separating credit from underlying contract between account party and beneficiary. Article 5 by recognizing the autonomy principle confirms that effectuate the payment under credit, banks only deal with documents and not with goods. As a result, while documentary letters of credit are meant to facilitate the process of international trade, their sole dependency on compliance of presented documents to bank by beneficiary to actualize the payment will increase the risk of fraud and forgery in the course of their operation. Interestingly, UCP (currently UCP600) takes a silent status regarding the problem of fraud in international LC operation and leaves the ground open for national laws to provide remedies to affected parties by fraudulent beneficiary. National Laws have different approaches to the problem of fraud in general and fraud in international LC operation in particular which makes the access of affected parties to possible remedies complicated and difficult. Current paper tries to find answer to the questions of (i) what available remedies are provided to affected parties in international LC fraud by different legal systems? (ii) And what are conditions for benefiting from such remedies under different legal systems? In achieving its objective, paper will be divided in two main parts to study remedies provided by intentional legal frameworks as well as the ones offered by national laws. Part one will study the position of UCP and UNCITRAL Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention) and remedies, which they provide to LC fraud in international trade. Part two in contrary will study available remedies to LC fraud and condition for access them under English and American legal system.

scholarly journals Transfer of Risk of Loss in Turkish Law and International Treaties

2020 ◽  
Author(s):  
Almıla Özkan ◽  
Ayşe Sena Aksakallı
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Vienna Convention ◽  
Legal Systems ◽  
International Treaties ◽  
Law System ◽  
Common Law System ◽  
The Way

The risk of loss refers to the value of the goods that were damaged or destroyed without responsibilities of any party. While the matter of risk of loss differs from legal systems to legal systems, it has been subject to international treaties as well. In Turkish legal system, the abrogated Code of Obligation and Turkish Code of Obligations have different features in terms of transfer of risk of loss. According to abrogated Code of Obligation, the buyer is responsible for the value of the damaged goods as soon as the parties sign the contract. In Turkish Code of Obligations, the seller bears the risk of loss until the delivery of goods or registration. Turkish Code of Obligation is compatible with civil law. And abrogated Code of Obligation is compatible with common law system. There are rules regarding transfer of risk of loss in many international treaties. By the way, it must be stated that rules of transfer of risk of loss in Vienna Convention are compatible with Turkish Code of Obligations.

scholarly journals Common Law legal norm

2021 ◽  
pp. 15-29
Author(s):  
Damir Šite
Keyword(s):  
Common Law ◽  
Legal Norm ◽  
Legal Systems ◽  
Legal Norms ◽  
Language Structure ◽  
Anglo American

In this paper the author attempts to define the otherness of common law legal norm in relation to that of a civilian one, through the analysis of differences identified in their formation and language. The first part deals with similarities and discrepancies in the process of creating a legal norm within two major legal families, examining the operational particularities of the two fundamentally different norm-creators. In this respect, the paper presents essential dissimilarities between the activities of a parliament as a legislator, opposed to an Anglo-American court as a creator of a binding precedent. The second part is dedicated to the analysis of the language of legal norm in two major European legal systems. The paper examines the language structure both in common law and civilian legal norms, as well as its limitations based on the particularities of forums in which they were created: the parliament and the court.

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.

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