GUJARAT NATIONAL LAW UNIVERSITY, GANDHINAGAR

P G DIPLOMA IN INTELLECTUAL PROPERTY RIGHTS

PAPER 1– INDIAN LEGAL SYSYEM- A PRIMER

CONTINUOUS EVALUATION ASSIGNMET

COMPARATIVE STUDY BETWEEN COMMON

LAW AND CIVIL LAW SYSTEM

SUBMITTED BY:

Name of Student: Nikhil Pilania

Registration Number: 21DIP008

SUBMITTED TO:

Dr. Nidhi H. Buch

Assistant Professor of Law & Head, Centre of IPR

Gujarat National Law University

Comparing the legal systems is a specific method by which it is considered as a separate branch

due to its important function. It is being said that none of the branches in law can place its

knowledge merely based on ideas and findings within the national borders. Several basic

objections have been given for the purpose of comparative study in common law and civil law

system. In civil law system and common law systems there is a divergence, even the judicial

system`s organs and judges` appointment and judicial formalism, which add to the burden of the

comparative study. Reviewing these differences could lead to a better understanding of these

legal systems and resulting with common principles in making use of each other`s findings.

Today the difference between common and civil legal system lies in the actual source of law.

Common-law systems refer extensively to statutes, but judicial cases are considered the most

important source of law, which allows judges to pro-actively contribute to rules framed therein.

For example, the elements needed to prove the crime of murder is not contained under the

statues but in case laws. For consistency, courts follow the precedents set by higher courts for

examining the same issue.

In civil-law systems on the other hand, codes and statutes are designed to cover all issues in

question and judges have a limited role of applying the law to the case in question. Past

judgments are no more than just a loose guidance. When it comes to court cases, judges in civil-

law systems are more like investigators to the case, while in the common-law systems they are

rather arbiters between parties presenting arguments.

SL. NO. PARTICULARS PAGE Nos.

1. INTRODUCTION 4

2. CIVIL LAW AND COMMON LAW COMPARED

a.) A Notion of Civil Law 5

b.) Notion of Common Law 5-6

c.) Comparison between Civil Law and 6-7

3. CIVIL PROCEDURE

a.) Comparison of Procedural law 8-9

b.) Determination of Facts 9-10

c.) Service of Documents and Discovery 10-11

d.) Rules on Admission and Weight of Evidence 11

e.) Witness Statements 11-13

f.) Court Experts and Expert Witnesses 13-14

g.) Effect of a Criminal Judgment on Subsequent 14-15

Civil Proceedings

h.) Attachment and Saisie Conservatoire 15

4. CONCLUSION 16-17

5. REFREENCES 17
 1. INTRODUCTION:

In comparative law, there will be many situations where the same legal term will have different

meanings, or where different legal terms have may have same legal effect. This often causes

confusion to both the lawyers and their clients. This confusion most often occurs mostly when

civil lawyers will be dealing in common law matters, or vice versa, when common law lawyers

deal with the cases under civil law. While there are many issues which are dealt with in the similar

way by both the civil law and common law systems. The discussion below will not deal with

theoretical examination of differences between the common law and the civil law but will focus

rather on various distinctive features in civil law and common law, with some illustrations of

resulting differences in the procedural law. There are great number of these differences and all of

them, of course, cannot be dealt with in this short research study. Hence, this research paper will

review only several typical examples of differences between the civil law and the common law,

both in substantive law and civil procedure. The scope of this research paper will be mainly

focused on the civil law issues and will not deal with other areas of law. The purpose of this

short research paper is simply to highlight some of the important differences between common

law and civil law systems, and to explore the possibilities of reconciling of some of those

differences.
 2. CIVIL LAW AND COMMON LAW COMPARED:

a.) A Notion of Civil Law:

Civil law has its origin in Roman law, as codified in the Corpus Iuris Civilis of Justinian, it is also

called as Romano-Germanic law. Under this influence, in the ensuing period the civil law has

been developed in Continental Europe and in many other parts of the world. The main feature

the of civil law is that it is contained in civil codes, which has been described as a "systematic,

authoritative, and guiding statute of broad coverage, breathing the spirit of reform and

marking a new start in the legal life of an entire nation." Most civil codes were adopted in

the 19th and 20th centuries: French Code Civil, 1804, Austrian Burgerliches Gesetzbuch, 1811,

German Burgerliches Gesetzbuch, 1896, Japanese Minpo, 1896, Swiss Zivilgesetzbuch, 1907,

Italian Codice Civile, 1942. Between these codes there are many important differences, and they

are often grouped in the Romanic and the Germanic families. Even though the civil codes of

different countries are not very similar, still there are certain features of all civil codes which bind

them all-together and makes them apart from those who practice under different systems". Civil

law is largely classified and structured in such a way that it contains a great number of general

rules and principles, which often lacking details. One of the basic characteristics of the civil law is

that the courts main task is to apply the codes or a statute to interpret the law on the facts of the

case. On the basis that the code regulates all cases that could occur in practice, and when any

cases are not regulated by the code, the courts should apply some of the general rule or

principles in-order to fill the gaps.

b.) Notion of Common Law

Common law evolved in England since around the eleventh century and was later adopted in the

USA, Canada, Australia, New Zealand, and other countries of the British Commonwealth. It is

also known by Anglo-American law. The most obvious distinction between civil law and

common law systems is a that civil law system is a codified system, whereas the common law is
not created by means of legislation but is based mainly on decided case law. The principle is that

earlier judicial decisions, usually of the higher courts, made in a similar case, should be followed

in line with the subsequent cases, i.e., for the purpose that precedents should be respected. This

principle is known as stare decisis and has never been legislated but is regarded as binding by the

courts, which can even decide to modify it The claim that common law is created by the case law

is not completely true, as the common law is based in large part on statutes, which the judges

apply to interpret and decide the case, in much the same way as the judges in civil law.. .

c.) Comparison between Civil Law and Common Law:

The common law and civil law systems are the outcome of two fundamentally different

approaches to the legal process. In civil law, mostly the principles and rules are contained in

codes and statutes, which are applied by the codes. Hence, codes and statutes prevail, while case

law constitutes only a secondary source of law. On the opposite hand, within the common law

system, the law has been dominantly created by judicial decisions of the courts, while a

conceptual structure is often lacking in civil law and common law, due difference in role of

legislator. The civil law is mainly based on the theory of separation of powers, whereby the role

of legislator is to legislate, while the courts should apply the law of interpretation, while in

common law the courts are given the main task of creating the law. The civil law is predicated on

codes which contain logically connected concepts and rules, starting with general principles and

moving on to specific rules. A civil lawyer usually starts from a legal norm contained during a

legislation, and by means of deduction makes conclusions regarding the case. On the other hand,

a lawyer in common law starts with the case and compares it with an equivalent or similar legal

issues that are addressed by courts in previously decided case proceedings and Judgements, and

from similar relevant precedents the binding legal rule is determined by means of induction. The

main consequence of this fundamental difference between the two systems is that lawyers from

the civil law countries tend to be more conceptual, while lawyers from the common law
countries tend to be more pragmatic. One of the major differences between the civil and

common law systems is the binding force of precedents. While the courts within the civil law

system have as their main task of deciding cases by applying legal norms as per the interpretation

of statutes, in the common law the courts are supposed not only to decide disputes between

parties but also to provide guidance as to how similar disputes should be settled in the future.

The interpretation of a legislation given by a court in specific case is binding on lower courts, in

order that under common law the court decisions still make the idea for interpretation of

legislation. On the other hand, in contrast to common law, the decided case law in civil law

systems does not have any binding force. The doctrine of stare decisis does not apply to civil law

courts, in order that court decisions are not binding on lower courts in subsequent cases, nor are

they binding on an equivalent court, and it is not uncommon for courts to succeed in opposite

conclusions in similar cases. In civil law the courts have the task to interpret the law as contained

during a legislation, without being bound by the interpretation of an equivalent legislation given

by higher courts; this suggests that under civil law, the courts do not create the law, but only

apply and interpret it. In practice, however, the higher court decisions certainly have a certain

influence on lower courts since judges of lower courts will usually consider the risk that their

decisions would probably be reversed by the upper court if they contradict the upper court

decisions. Judges normally try to ensure of avoiding a situation for reversal of their decisions by

higher courts as if too many of their decisions are reversed their promotion may be adversely

affected. Hence, even though in civil law systems the case law formally has no binding force, it is

generally recognized that courts should consider prior decisions, especially when the settled case

law shows that a line of cases has developed.

a.) Comparison of Procedural law

Differences in procedural law between the civil law and customary law are even more obvious

than those in substantive law. Common law procedure is typically called "adversarial", which

suggests that the judge acts as neutral arbiter between the parties at issue as they

each suggests their case. The parties during a dispute lead the proceedings, while the position of

judge is quite passive as he or she does not undertake any independent investigation into the

topic matter of the dispute. The role of judge is not to seek out the last word truth. The judge's

main task is to oversee the proceedings and to make sure that each one aspects of the procedure

are respected. The judge does not himself interrogate the witnesses, but his task is to make

sure that the questions the parties put to the witnesses are relevant to the case. At the end, the

judge should decide the case consistent with the more convincing of the competing

presentations. Civil law procedure is typically called "inquisitorial” because the judge examines

the witnesses, and therefore the parties at issue practically have not any right of cross-

examination. Compared to common law, the judge in civil law plays a more active role within

the proceedings, e.g., by questioning witnesses and formulating issues. This is because the court

has the task to clarify the problems and help the parties to form their arguments. The judge

plays the most role in establishing the fabric truth on the idea of obtainable evidence. The

judge does not need to await the counsels to present evidence, but he or she will actively initiate

introducing of relevant evidence and should order one among the parties to disclose evidence in

its possession. The judge has a task not merely to decide the case according to the stronger of

the competing presentations, but to ascertain the definite truth and then to make a just decision.

With respect to the resolution of legal issues, the civil law system is based on the principle "jura

novit curia" ("the Court is supposed to know the law"), which means that there is no need for

parties to plead the law. On the opposite hand, in common law the law has got to be pleaded,

the precedents for or against need to be submitted and distinguished the utilization of the terms
"adversarial" and "inquisitorial" is misleading and may not help much in identifying the

differences between the common law and civil law procedures, as these two terms might be used

for both procedures. To find out those differences the more appropriate way is to compare

certain aspects of common law and civil law procedures, such as the way of determination of

facts, service of documents, rules on admission and weight of evidence, witness statements,

position of court experts, standard of proof in civil and criminal cases.

b.) Determination of Facts

While in common law system the parties and the court first investigate the facts to establish

the truth, in civil law system the court is mainly concerned with the claims of the parties as

they are expressed in the pleadings. In common law a complaint is merely a formality which

starts a procedure of investigation aimed at establishing the truth. On the opposite hand, in

civil law the complaint determines the parameters of the case. Consequently, the judges in

civil law countries will consider the facts which are submitted by the parties and if the facts

as presented by the parties differ, the judge will make a choice on the idea of the available

evidence as presented by the parties. The parties, of course, also are active during a civil law

trial. The parties are entitled to introduce evidence and propose motions. The parties are

allowed to introduce evidence after providing the other side with an opportunity to inspect.

While the judge makes the initial interrogation of witnesses, the counsels have the proper to

form additional questions. Also, there are important differences between civil law and

customary law within the way an attempt is conducted. A civil law trial is consisted of

several hearings, and written communications between the parties, their attorneys and the

judge during which an eventual dispute on court's jurisdiction is resolved, evidence is

presented, and motions are made. Compared to the common law system, there is less

emphasis on oral arguments and examination. Instead, written language is prevailing, and if
during the trial a replacement point is raised by one among the attorneys, the opposite may

ask the court for a particular period of your time to answer that issue in writing.

c.) Service of Documents and Discovery

Another important difference between common law and civil law exists within the methods

of gathering evidence within the pre-trial stage. In common law, the pre-trial look

for evidence is dominated by the method of discovery. The parties are obliged to supply for

inspection by the opposite party all documents or information which are relevant to the

matters at issue, and which are in their possession without the intervention of the court,

whether the documents favour their claim or defence. Through discovery of documents, the

parties to a dispute can obtain access to facts and information the adverse party intends to

rely on at trial. Thus, discovery enables the parties to get facts and knowledge about the

case from the opposite party, which assists them in preparing for trial. On the

opposite hand, in civil law civil there is no pre-trial discovery. The main purpose of

evidence presented by a celebration is to prove his or her legal or factual arguments.

Consequently, a celebration is obliged to supply only those documents which

are mentioned in its pleadings. Under civil law, the parties are not obliged to

supply documents voluntarily to the opposite party during civil litigation. While within

the common law system the parties should collect and introduce evidence, within the civil

law system the judge plays the most role in collecting evidence. If one party wishes to

obtain access to documents held by another party, it will have to ask the court to order the

other party to disclose the document in question. So, while the common law process of

discovery is a private matter, performed by lawyers in accordance with prescribed

procedure, the civil law process of collecting evidence is a public function conducted by the

court. This is in accordance with the overall principle within the civil law system that the
court instead of the parties is within the charge of the method of the development of

evidence.

d.) Rules on Admission and Weight of Evidence

The common law contains several rules which restrict admission of evidence. The main barriers

to the production of documentary evidence are: authencity, the hearsay rule, and the best

evidence rule. The requirement of authencity as a condition precedent to admissibility of

evidence is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims. The authencity of a document may be proven in any way, such as

handwriting verification, or oral testimony of a person who saw the document executed. The

admission of the authencity of a document is not any evidence that the content of the document

is accurate, nor does it deprive a celebration of a chance to object to its admissibility in evidence.

Under the "hearsay" rule, a witness might not testify about fact of which he or she has no direct

knowledge, eg about conversation of people a witness heard. Under the "best evidence" rule, the

evidence must constitute the simplest available evidence. In the case of written documents, the

first document must be presented. The civil procedure rules within the civil law system

contains the principles on evidence which determine what could also be introduced as evidence

and sets conditions of admissibility and weight of evidence. However, within the civil law, while

there are some restrictions, there aren't rules like the common law rules on admissibility like "

hearsay" and "best evidence" rules. In principle, any evidence is admissible, but the court will

evaluate what proportion weight is to be accorded to an evidence. Evidence admitted is subject

to appeals for factual error.

e.) Witness Statements:

The common law contains several rules which restrict admission of evidence. The main barriers

to the production of documentary evidence are: authencity, the hearsay rule, and the best

evidence rule. The requirement of authencity as a condition precedent to admissibility of

what its proponent claims. The authencity of a document may be proven in any way, such as

handwriting verification, or oral testimony of a person who saw the document executed. The

admission of the authencity of a document is not any evidence that the content of the document

is accurate, nor does it deprive a celebration of a chance to object to its admissibility in evidence.

Under the "hearsay" rule, a witness might not testify about fact of which he or she has no direct

knowledge, eg about conversation of people a witness heard. Under the "best evidence" rule, the

evidence must constitute the simplest available evidence. In the case of written documents, the

first document must be presented. The civil procedure rules within the civil law system

contains the principles on evidence which determine what could also be introduced as evidence

and sets conditions of admissibility and weight of evidence. However, within the civil law, while

there are some restrictions, there aren't rules like the common law rules on admissibility like "

hearsay" and "best evidence" rules. In principle, any evidence is admissible, but the court will

evaluate what proportion weight is to be accorded to an evidence. Evidence admitted is subject

to appeals for factual error.

There are significant differences between common law and civil law in reference to witness

evidence. One of the essential principles of common law is that the cross-examination of

witnesses, which allows a radical examination of the case. Oral evidence is given considerable

weight and can usually prevail over written evidence. At a standard law trial witnesses are

examined and cross-examined within the presence of the judge and jury. Motions and objections

are often made orally by counsel, and therefore the judge rules on orally on them. In the civil

law, on the contrary, written evidence prevails over oral evidence. If a claim is supported by a

document, the judge will usually not go further. If a document is contradicted by oral statement

of a witness the document will normally prevail. In commercial cases, the utilization of witness

evidence is extremely unusual. In some civil law countries, the court may even exclude the

evidence given by a celebration witness in his or her own case. In criminal cases, most civil law
countries recognize testimonial privilege for potential witnesses drawn from the family. Cross-

examination of witnesses is virtually unknown in civil law. However, in some civil law countries

counsel is allowed to question the witness directly, while in another civil law countries counsel

can only formulate questions and ask the judge to put them to the witness. The judge has a

discretionary right to decide whether to ask the proposed questions or not. The judge also

has the facility to ask further questions beyond those proposed by the parties if that's necessary

for establishing the reality. The usual practice in most civil law countries is that witness testimony

in not recorded verbatim, but the judge dictates a summary of the testimony into the dossier in

the judge's own words. In common law, this practice would be considered as a denial of basic

procedural fairness. Another important difference between common law and civil law,

in reference to the witness evidence, is so-called "preparation of witnesses". In common law,

counsel would normally "prepare" their witnesses for the hearing so as to avoid surprises during

the trial and to form sure that the witness statements are accurate. In civil law, the preparation of

witnesses is strictly forbidden. The attorneys are normally not allowed to discuss the issues

related to trial with witnesses out of court and may face disciplinary sanctions if they breach this

rule. If the judge is informed that a witness was questioned by the attorney before the trial, the

witness' testimony might not tend full credibility.

f.) Court Experts and Expert Witnesses

The courts often invite experts in certain fields to offer testimony on the facts which require

highly technical knowledge, like engineers, physicians, accountants, handwriting experts, etc.

They are considered as witnesses whose task is to supply the court with information associated

with a specialized area. In common law, the experts are appointed and paid by the parties.

Therefore, the experts are usually partial, and their task is to support the position of the party

who appointed them. Like other witnesses, they are examined and cross-examined by attorneys.

On the opposite hand, the experts during a civil law trial are not considered as witnesses and that
they are usually called "court's experts". The court experts are appointed by the court, not by the

parties, and that they are expected to be impartial. The courts often believe expert opinion, and

lots of cases are decided mainly on the idea of expert evidence. The expert is typically instructed

by the court to organize a written opinion, which is then circulated to the attorneys. The

attorneys may interrogate the expert at a hearing. If one of the parties’ objects to the expert

opinion, or the court finds the expert's report unsatisfactory, the court may appoint another

expert. A party may propose a particular expert, but the court may reject this proposal and select

another expert.

g.) Effect of a Criminal Judgment on Subsequent Civil Proceedings

When one wrongful act is basis for both civil and criminal liability, among common law and civil

law systems there are some important differences associated with the effect of a criminal

judgment on subsequent civil proceedings. In common law, the rule is that in a civil action fact

in issue cannot be proved by reference to previous criminal proceedings. In civil proceedings, the

criminal judgment is not admitted as evidence of the facts established by it, even against the one

that may be a party in both proceedings. Hence, the civil court is liberal to decide differently

from the court albeit the facts of the case are an equivalent. It is important to notice that in

common law, there is a difference of ordinary of proof in civil and criminal cases. In civil cases

the plaintiff is required to prove a "balance of probabilities" or "preponderance of evidence",

which means to prove that what is sought to be proved is more likely true than not. In criminal

cases the quality of evidence is "beyond reasonable doubt" which is far stricter. In many civil law

jurisdictions, a criminal judgment has the force of a conclusive evidence and binds the whole

world. Criminal jurisdiction is regarded as superior to civil jurisdiction (le criminel emporte sur le

civil), and civil courts are bound by the decisions of criminal courts. There is often an

immediate link between the criminal fault and therefore the civil tort liability: the

conviction during a criminal case may function a basis for the award of damages in a civil tort
case. Differently from common law, in civil law the quality of proof is that the same for both

criminal and civil cases. Also, under civil law, there is no distinction between criminal and civil

negligence, so if the court has acquitted an individual of negligence, the civil court are going to

be bound by this judgment. However, there are some exceptions and limits to this principle. For

example, if the criminal court has acquitted a person of liability in a criminal case, the civil court

is free to hold that person civilly liable under the rule of strict liability. Also, in some civil cases

(eg. cases related to traffic accidents), the civil court is not bound by the views of the criminal

court related to the extent of the damage suffered by a plaintiff.

h.) Attachment and Saisie Conservatoire

Under American law, the plaintiff can believe attachment for securing its claim against defendant

before the court renders the judgment. Attachment is that the legal process of seizing the

defendant's property in accordance with a writ or judicial order for the aim of securing

satisfaction of the judgment within the event the suit succeeds. While under English

law there's no attachment, the Mareva injunction, introduced into English law in 1975, has

similar effect. Mareva injunction prohibits the defendant, before or during a suit, from removing

assets from the jurisdiction or from handling them when it appears to the court that without

such an order the plaintiff's recovery on his claim will be imperiled. It is merely a court order

freezing assets and it does not relate to the merits of the case.

In civil law, the arrest of a ship could also be a quite pre-trial attachment; a ship may be arrested

either to enforce a maritime lien or a private claim against the owner. In both cases the action is

directed against the owner personally and never against a ship. Differently from the attachment

under common law, saisie conservatoire can be applied to property other than ships and ships

can be arrested for most civil claims, not only maritime.

The examination of common law and civil law reveals that there are more similarities than

differences between these two legal systems. Despite very different legal cultures, processes, and

institutions, common law and civil law have displayed an interesting convergence in their

treatment of most legal issues Under the contemporary pressure of globalisation, modern civil

law and customary law systems show several signs of convergence. Many of the differences

that want to exist between the civil law and customary law systems are now much less

visible thanks to the changes which have occurred both in common law and civil law. In the

common law, regulatory law has achieved a greater importance leaving less room for the courts,

while within the civil law the role of the courts within the creation of law has greatly increased.

As a result of these processes getting to opposite directions, many of the differences between

common law and civil law look now more like nuances instead of major differences. The

differences which exist between civil law and customary law should not be exaggerated. It is also

important to notice that differences on many issues exist both among civil law and among

common law countries. The differences between civil law and customary law systems are more

in sorts of argumentation and methodology than within the content of legal norms. By using

different means, both civil law and customary law are aimed toward an equivalent goal and

similar results are often obtained by different reasoning. The fact that common law and civil law,

despite the utilization of various means reach an equivalent or similar

solutions isn't surprising, because the subject-matter of the legal regulation and therefore

the basic values in both legal systems are more or less an equivalent. While a

particular rapprochement between civil law and customary law systems is clear and this tendency

will continue, there are still important differences which can still exist for an indefinite period.

This paper has given several examples of these differences between the common law and civil

law systems. An awareness of those differences is important for any lawyer dealing in law of

nations. The differences in some areas are substantial and therefore the parties contemplating
starting proceedings in another system are advised to see those differences before taking action.

The aim of this paper was not to guage which system is better: civil law or common law. The

task of lawyers should not be to defend their legal systems, but to enhance them.

Each system may have some advantages and deficiencies. If a far-off system has some

advantages, why not incorporate them within the domestic legal system? In that way the resulting

convergence of the two legal systems can only contribute to their common goal of creating a fair

and just legal system which can provide legal certainty and protection to all or any citizens and

legal persons.

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common-law.

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precedents-the-binding-legal-rule-is-determined/.

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regulation/framework-assessment/legal-systems/common-vs-civil-law.

6. https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/.

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8. https://www.jstor.org/stable/838275.